Overview of Malaysian Divorce Law
Divorce for non-Muslims in Malaysia is the same as in most countries, which is decided jointly by law and court. However, the Law Reform (Marriage and Divorce) Act 1976 (LRA) is the main law governing the rights of spouses and divorce proceedings. In essence, it provides several important core issues in divorce, including grounds for divorce, alimony and child custody.
Marriage in Malaysia can be divided into two categories: less than 2 years, and 2 years or more. The number of years of marriage can determine certain divorce terms. Here we will discuss several common issues in divorce cases, including:
● Child custody
● Reasons for divorce (domestic violence)
● Foreign divorce
● Marital assets and asset allocation
● Divorce petition method
Although this article discusses the laws related to divorce and the procedures that spouses should follow during the divorce, this article cannot replace formal legal advice. In any case, it is recommended that you consult a defense lawyer with family law qualifications in Malaysia for more specific advice and solutions.
Types of marriage in Malaysia
As mentioned earlier, marriages in Malaysia are divided into two years or less and two years or more. However, to apply for divorce in Malaysia, couples must meet certain conditions before they can apply. The terms are as follows:
● First of all, according to Article 50 of the Law Reform (Marriage and Divorce) Act (LRA), the marriage must be maintained for at least 2 years before the application for divorce can be filed, otherwise it will not be accepted. If the marriage has been maintained for 2 years or more, it will not be restricted by this clause.
● Secondly, according to Article 106 of the Law Reform (Marriage and Divorce) Act (LRA), before the divorce, if the spouses cannot reach an unanimous consensus, they should first submit the marriage problems encountered to the mediation agency. Mediation counseling.
However, there are two special circumstances that can apply for divorce within the first 2 years of marriage:
●The applicant proves that there are special circumstances or difficulties that must be divorced within 2 years; or
● One of the parties referred to in Article 51 of the Law Reform (Marriage and Divorce) Act (LRA) converted to Islam
Unless there are special circumstances mentioned above, spouses wishing to apply for divorce need to make sure that their marriage has been maintained for 2 years or more.
Child Guardianship in Malaysia
In Malaysia, the guardianship of children is governed by various laws such as the Law Reform (Marriage and Divorce) Act (LRA) and the Guardianship and Infant Act 1961 (GIA). Child custody is a strict legal term that defines the relationship between parents and children after divorce.
According to Article 95 of the Law Reform (Marriage and Divorce) Act (LRA), child custody is only valid until the child reaches the age of 18 when he is an adult. Under general terms, both the father and mother have the same right to guard the child. However, when deciding which party should obtain guardianship, the court will prioritize the welfare of the child. According to Article 11 of the Guardianship and Infant Act (GIA) of 1961, the court will also consider the wishes of parents and children. Please refer to the following terms:
● That is, the guardianship of children under the age of 7 belongs to the mother, which is a rebuttable presumption. However, the court will consider whether this change will disrupt the child’s daily routine (Article 88(3) of the LRA Act)
● If there are two or more children in the marriage, the welfare of each child will be considered independently, and the court is not obliged to place all children under the custody of the same parent or mother.
● Only when the welfare of the child is affected, the living habits of the parents will be considered.
Child guardianship is divided into guardianship, care and control, and visitation rights. Guardianship involves the right to make important decisions about a child’s life (such as education). Care and control involve the daily care of the child, while the right of visitation is for the parent (one of them) who has lost custody, care and control to make arrangements for visits. The visitation schedule includes:
● Alternating public holidays
● Alternating weekends
● Birthdays and important holidays
● School Holiday
domestic violence
According to the Malaysian Family Law, domestic violence is defined as a very serious incident. According to the special provisions of the Domestic Violence (Amendment) Act of 2017, it includes physical injury, sexual abuse, imprisonment, threats, embezzlement of property, or emotional/psychological abuse of one party to the other, which is considered domestic violence.
According to Article 53(2) of the Law Reform (Marriage and Divorce) Act (LRA), any party in an abusive relationship can apply for divorce on the grounds that the marriage has broken down and is irreparable.
The abused person can file a complaint on the grounds of being abused and provide evidence that the defendant’s actions have prevented the plaintiff from cohabiting with the defendant. In the case of Renuka Muniandy Ramakrishnan against Jeeva Kalia Perumal [2017] MLRHU 258, because her spouse repeatedly abused her with physical violence and emotional and verbal abuse, the plaintiff could apply for divorce.
Even if the marriage has not exceeded two years, you can still apply for divorce. As mentioned earlier, Article 50 of the Law Reform (Marriage and Divorce) Act (LRA) allows spouses of such marriages to lodge complaints under “special circumstances”. The court ruled in Kiranjit Kaur Kalwant Singh v. Chandol Narinderpal Singh [2013] 3 CLJ 724 that all forms of domestic violence are special circumstances.
Before the divorce, the battered spouse can apply to the police for a protection order or to the court for an anti-harassment order so that the abuser cannot approach the plaintiff.
Divorce of foreign spouses in Malaysia
When it comes to foreign-related marriages, Malaysian divorce clauses are more complicated. Generally, the court has the power to force a divorce under the following circumstances:
● Marriages registered under the Law Reform (Marriage and Divorce) Act (LRA), or marriages subject to foreign monogamy laws; and
● According to Article 48 of the Law Reform (Marriage and Divorce) Act (LRA), at the time of divorce application, the spouse is settled in Malaysia.
However, if the marriage involves a foreign spouse, there may be issues concerning household registration or the country’s law governing the marriage or divorce. The following is related content:
● If the marriage registration is carried out in Malaysia and both parties live in Malaysia, anyone can apply for a divorce from a foreign spouse.
● If the marriage registration is carried out in other countries, but both parties live in Malaysia, they can apply for divorce.
● Usually, the husband’s residence is considered the wife’s residence. However, if either party does not settle in Malaysia, the wife can apply for divorce under the following circumstances:
● Her husband does not settle in Malaysia and has abandoned her; or
● Her husband has settled in Malaysia but has been deported; or
● She is a resident of Malaysia and has lived for 2 years before filing for divorce (Law Reform (Marriage and Divorce) Act (LRA) Article 49)
Distribution of Marital Assets after Divorce in Malaysia
According to Article 76 of the Law Reform (Marriage and Divorce) Act (LRA), the Malaysian courts have the right to distribute the marital assets or the sale of assets and their proceeds during the marriage, provided that divorce or judicial separation is allowed.
Before Article 76 of the Law Reform (Marriage and Divorce) Act (LRA) was amended, this decree distinguished the marital assets obtained by the joint efforts of a spouse from the marital assets obtained by one spouse. But this distinction has now been abolished, and the court will treat all assets acquired during the marriage as marital assets.
These assets include currency, movable and real estate, including real estate, insurance and retirement funds, and shares. Courts tend to distribute marital assets equally, taking into account the following points:
● Assets are based on the degree of capital contribution by all parties
●The extent to which each party contributes to family welfare or family care
● Debts owed by either party but signed for the benefit of the common family (such as housing loans)
● Needs of underage children
● Duration of marriage
Although more and more couples are signing prenuptial agreements, the court is ultimately entitled to distribute marital assets. The court must use the Law Reform (Marriage and Divorce) Act (LRA) to consider the factors of distribution and maintenance of marital assets. This means that it may not be affected by any prenuptial agreement.
How to file a petition for divorce by mutual agreement
In Malaysia, a petition for divorce is usually required to file for divorce. This includes a petition for divorce by mutual agreement (divorce by mutual consent) or a petition for unilateral divorce (submitted by one of the spouses). The agreement of the petition for divorce means that both parties have reached a consensus and will not raise any objections to the divorce. The procedure is relatively simple.
Submitting a unilateral divorce petition means that both parties cannot reach an agreement on everything from child custody to the distribution of marital assets.
If the petition for divorce by mutual agreement is submitted, the couple does not need to participate in any marriage consultation before applying for divorce. However, they must:
● Submit a petition to the High Court with a petition verifying the oath and a statement about the arrangements for the child.
●The hearing date will be announced after filing by the High Court. Both spouses must attend the hearing on the day. The court will read out the terms of the petition and ask whether both parties understand and agree to it.
● If both parties agree to a divorce, the court will issue a divorce order on the same day during the hearing.
Conclusion
As you can see, you should understand that these divorce procedures involve complex legal issues before applying for divorce in Malaysia. If you need the services of an experienced family law counsel in Malaysia, please contact Alan Kang & Co.
Over the years, we have provided high-quality divorce legal consulting services for residents and non-residents of Malaysia. We have extensive experience to help you with your case. If you need professional legal advice and assistance, please call us at +603-7972 7223.
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