First of all, it must be stated that this article is mainly for divorce procedures for non-Muslims in Malaysia because Muslim marriages are governed by Sharia law. Non-Muslim marriages and divorces are mainly regulated by the Law Reform (Marriage and Divorce) Act 1976, and the practice of Monogamy.
In Malaysia, if a non-Muslim marries another person after the Act takes effect and the spouse is still alive and has yet divorced, he or she will commit bigamy and be sentenced to up to seven years in prison.
The marriage procedure can be said to be much simpler than the divorce procedure, because except for some procedures, the main thing is that a couple only needs to swear or take oath and sign in front of the Registrar to register as husband and wife. As for divorce, it needs an order from the high court.
“Yes, you must appoint a lawyer to apply for divorce in the High Court.”
According to Section 23 of the Law Reform (Marriage and Divorce) Act 1976, before registering a couple as husband and wife and officially officiating a wedding ceremony (solemnization), the marriage registrar must explain to the couple that the marriage can only be dissolved if one of the parties dies or valid order from the court that the marriage become invalid or lifted.
Some people may ask why the court needs to put interference in the divorce between two people and take care of the family affairs; I think the reason may be that social values encourage marriage rather than separation. Therefore, if both parties or one of them apply for a divorce, the court must ensure that the marriage has reached a point where the marriage is irretrievably broken down.
In the divorce process, whether both parties or one of them want to apply for a divorce, the lawyer will first ask whether the marriage has been more than two years. This is because there is a time frame set by the Law Reform (Marriage and Divorce) Act 1976. Of course, if the petitioner can prove that the marriage has exceptional circumstances or that the petitioner is living a difficult life (exceptional circumstances or hardship) and can no longer maintain the marriage, the court can then grant a divorce even if the marriage has not reached the two-year period with a court order. The question arises here is that exceptional circumstances is a very subjective matter; the petitioner must convince the court why the marriage must be dissolved immediately. In any case, the two-year period does not apply if one of the parties has converted to Islam. The party who has not converted to Islam can unilaterally apply to the court to dissolve the marriage and is not subjected to the restrictions of the two-year marriage. The author believes that before a couple enters the marriage, they shall make the decision after careful consideration. If the court does not give a harsh two-year limit, then there may be many people who have a non-serious and respectful attitude towards marriage.
If the marriage exceeds two years and both parties have reached a consensus on the divorce and terms, both parties can apply to the court for a joint petition. This is because both parties have reached a consensus on the divorce in the divorce petition, and how to distribute the alimony, child custody and property distribution, so the procedure is relatively simple and fast. Under normal circumstances, on the day of the hearing, after the judge confirms that both parties have a free and clear understanding of the consequences and conditions of the divorce, the judge will give a divorce order. It must be noted that regardless of whether it is a unilateral or joint petition, the reason for divorce accepted by the court must be because the marriage is irretrievably broken down. In the joint petition, both parties do not need to specify the reasons why the marriage cannot continue.
If the two parties cannot reach a consensus on the divorce terms or one of the parties refuses to divorce, the other party can apply to the court for a unilateral divorce application known as the Single Petition. The procedure for a unilateral divorce petition will be much more complicated than that of joint petition. First, the petitioner must apply to JPN for mediation and counseling of the marriage, otherwise the court will not accept the petition; unless you have a good reason to explain why you applied for divorce without mediation and counseling. In this stage, lawyers cannot intervene, and the reconciliation process will be a less formal and easy-going process. If the three reconciliations have failed, the tribunal will then issue a certificate stating that the marriage of both parties cannot be reconciled and then the petitioner can apply to the court for unilateral divorce.
In the petition, the petitioner must explain to the court why the marriage has reached an irretrievable point. In section 54, the reason why the marriage cannot go on must be of the four reasons stated by the law. In other words, if the petitioner managed to persuade the court that the breakdown is cause or lead by one of the reasons stated then the court will allow the marriage to be dissolved. These four reasons must be:
1. Adultery (i.e Cheating between partners);
2. The partner has behaved in such a way that the petitioner cannot be reasonably be expected to live with him;
3. Abandoned (deserted) by the partner for at least two years;
4. Have been separated from the partner for at least two years
Whether it is Unilateral or Joint petition, if the court allows the dissolution of the marriage, the court will issue a divorce order called the Decree Nisi. This is to say that the marriage is temporarily dissolved. In a case where both parties apply for a divorce, if either party regrets or does not want to dissolve the marriage, they can apply to the court to revoke the temporary divorce order; the reason may be that the court gives both parties a period to calm themselves to think about whether they really want to separate from each other.
Three months after the temporary order, the court will issue a Decree Absolute, and the lawyer will send the Decree Absolute to the National Registration Office to update the marital status of both parties. After the update, both parties are free to remarry.
By the way, the statements mentioned above are Dissolution of Marriage; which Nullity of Marriage are two different concepts in law. If a marriage is declared void by the court, it means that the marriage has never existed, and neither party has the right to ask the other party to pay any alimony or property distribution. In section 69, the law states that in four situations, a marriage is not recognized and void:
1. Either party is already married and has not dissolved the marriage;
2. Either party has not exceeded the legal marriage age;
3. The relationship between the two parties is not allowed to be married by law; such as the relationship between relatives;
4. Both parties are not the opposite sex (i.e male & male)
In this case, even if one of the parties remarries the other person before the marriage is void, he or she will not commit the crime of bigamy. The reason is self-evident: because the previous marriage has never existed.
Some people say that marriage is the tomb of love; while the author believes that marriage is a solemn stage for two people to each other. If you decide to protect each other from the beginning, why did you get to the point of divorce? Perhaps every divorce case has its own story and cause. If one day the reader goes to the Family High Court, you will be surprise and find that the divorce rate of modern people has reached to a peak level.
BY WINSON TAN
Note: This article is for reference only and does not constitute legal advice. Therefore, if readers have any legal questions or needs, they should seek professional legal advice. If the reader suffers any loss by relying on this article, the author will not be held responsible.