Divorce Process in Malaysia (Non-Muslim)
We usually have relatives or friends that would ask their lawyer friends, nephew, or nieces;
When people think of the word divorce people would tend to have the impression that divorce means going to the court and fight the case off and see whether the husband or wife wins the case. Hence, I will briefly explain the types of divorce, the process, and the pros and cons which I hope this can clear some of the public minds on divorce. However, the divorce process that I will be discussing would be the divorce process for the non-Muslims.
Joint Divorce Petition
(s.52 Law Reform (Marriage & Divorce) Act 1950)
As stated above, the impression of divorce means fighting the case in court and determine who would be the winner. Here, Joint Petition means both husband and wife (have been married for at least 2 years) mutually agree to divorce together with the terms of the divorce such as the custody of the children, maintenance of the wife and child, distributions of the matrimonial properties etc. In a simpler way to explain, for example “who can have the child, how much my husband or wife have to pay me monthly or lump sum, I did help to pay for the house when I was working so I want a share of the house even though my name is not registered in house.” All terms agreed upon by both parties would then be in the Joint Petition which would be signed by both parties and filed to the High Court of KL (for example if the parties reside in KL).
After filing the Joint Petition into court, the court would then fix a date for both parties to physically attend court and at the petition will then be read in court before the judge. One might say since I have already signed it why do I need to attend court. The reason behind this is for the court to make sure both parties freely consent to the terms of the petition. After the petition is read and upon being satisfied that both parties freely consent to the terms of the petition, the judge would grant a Decree Nisi for divorce. However, this is not the final stage yet. What do I mean by that?
The Decree Nisi must be made absolute only then both parties can be said officially divorced. Question arises, how to make it absolute? There are two options, (1) wait for a period of 3 months then the Decree Nisi would be made absolute (2) praying in court or in the petition for the Decree Nisi to be made absolute on the spot (i.e without waiting for the 3 months period).
Hence, people might say then why does option 1 even exist if there is option 2. It must be noted that to go for option 2, the court would only grant it if a good reason can be provided as to why the Decree Nisi should be made absolute. In my opinion and legal experiences, one of the reasons that I have provided to the court is that both parties have already been separated for a period of 3 years. The reason why option 1 existed is because within the period of 3 months which I would call it as cooling off period, is simply for both parties to reconcile back. If within the period of 3 months, both parties wish to reconcile back, both parties may withdraw their Joint Petition. Hence, they live happily ever after hahaha.
In the scenario where the Decree Nisi is made absolute, the court will issue the Decree Nisi Absolute (divorce certificate) and after obtaining this, the last step is to head to National Registration Department (Jabatan Pendaftaran Negara) in Putrajaya with the divorce certificate, marriage certicate, IC etc in order to update your marriage record.
The estimated duration for the whole process would usually be 6 – 9 months. If you are lucky in obtaining the Decree Nisi Absolute on the spot without waiting for the 3-month periods, then this would definitely be able to speed up the entire process.
Next question what are the pros and cons of a Joint Petition. Firstly, the cost is lesser compared to the Single Petition (everyone loves to hear it when we say cost lesser 🙂) and secondly, the process is much faster compared to Single Petition. I would explain what is a Single Petition later in below and the readers can see why Joint Petition cost is lesser and faster compared to Single Petition. The obvious and logical reason is because everything in the Joint Petition is agreed mutually hence there is no dispute in any terms of the divorce.
Before I wrap up the Joint Petition, readers might ask when to opt for Joint Petition? The answer would be if both parties can satisfy the requirements mentioned above (marriage is more than 2 years, mutually consent and agrees to the terms of the divorce).
Single Divorce Petition
(s.50 Law Reform (Marriage & Divorce) Act 1950)
Another type of divorce is the Single Petition divorce, or you may call it the contested divorce. Question arises when can someone file for Single Petition? Single Petition means when the term of the divorce is not agreed upon by both parties (contested) unlike Joint Petition where both parties agreed to all the terms of divorce. However, for Single Petition, either party may file without the consent of parties. The requirements to file for a Single Petition can be found in s.50 of the act in order words, one can only file for Single Petition after 2 years of marriage and according to s.53 of the act, it states that the only ground for divorce is that the marriage has irretrievably broken down (IBD). People may ask what do you mean by IBD?
If you look at s.54 of the act, it laid out the following factors such as:
- Unreasonable behaviour (g punch you wherever serve him dinner late);
- Deserted for a continuous period of at least 2 years; and
- Separated for a continuous period of at least 2 years.
To be noted if one is going for (c) or (d), during the entire 2 years, the petitioner should not be meeting the respondent (person whom you wish to divorce) as it says continuous period of at least 2 years. In the practical point of view, just to play safe as this may be raised by the petitioner.The process here is much more complicated compared with the Joint Petition. Firstly, before filing in petition, according to s.106 of the act, one must refer to the Conciliatory body first. This means going to the National Registration Department (NRD) or Jabatan Pendaftaran Negara. The NRD will then fix a date for reconciliation and inform both parties. During this reconciliation, no witness and lawyers will be involved. After the reconciliation if it is necessary the conciliator can fix further dates. Question time, what happens if for example, the husband fails to attend the meeting? The NRD may fix a new date for a new meeting, or the reason is that the husband fails to attend on purpose then the petitioner can apply for exemption of this reconciliation process.
If reconciliation is attended by both parties and reconciliation failed, then the NRD will issue a Certificate to prove that reconciliation has been attended. Having the certificate, the petitioner can now file for the Single Petition exhibiting the certificate as proof to the court that both parties went for reconciliation.
Now everyone may think, such a long process to go through before even I can divorce. If my husband or wife is being so unreasonable (hitting slapping punching me) and I am staying with him now, definitely it is impossible for any reconciliation!!
Don’t worry, in every situation when there is a rule there is always an exception to it (you understand, I understand okay hahaha) The exceptions are stated in s.106 of the act;
- Petitioner being deserted and does not know the whereabout of the respondent;
- Respondent is abroad and unlikely to be back within 6 months after the date of petition;
- Respondent willfully fail to attend reconciliation when is required to do so previously;
- Respondent is imprisoned for a term of 5 years or more;
- Respondent is suffering from incurable mental illness; and
- Exceptional circumstances.
To be noted that if any reasons that the petitioner wishes to apply for exemption of the reconciliation does not fall in (a) to (e), the petitioner can try to go for (f), which is determine by the court whether is the reason putting forward an exceptional circumstance to be exempted from the reconciliation meeting. For example, the scenario where “If my husband or wife is being so unreasonable (hitting slapping punching me) and I am staying with him now, definitely it is impossible for any reconciliation!!”– In my opinion to stand a better chance to succeed in (f), the petitioner should lodge a police report against the husband (immaterial if the investigating officer would investigate the case) but as long as there is a record that you have lodge a police report might show the urgency of the case to be get an exemption for the reconciliation meeting and proceed straight for the petition. Category (f) may be a wide scope hence it is better to provide stronger evidence (such as police report) to support the application of exemption in my point of view.
However, the process of reconciliation shall not be longer than a period of 6 months. After the reconciliation stage and the petition is filed, the Petitioner shall serve the Petition to the Respondent personally or service by hand, but I would advise to serve it by way of registered post and service by hand. After the service process, the court will fix a case management (for exchange or documents between both parties) and even a mediation / settlement.
In the scenario if no settlement arises, a trial date will be fixed. Briefly what will happen during the trial is that witnesses will be called to testify, the third party that causes the marriage to be broken down may be called (if refuses then a subpoena) and etc. The issues that would usually be argue in court would be the custody of the child, welfare of the child, maintenance rights and interest over the matrimonial property (which may include shares EPF) and etc.
Readers reading this would now feel OMG the by looking at the process only, it would definitely take decades to complete the entire process. I must be honest with you, yes, it is long. Long means looking at about 1-2 years depends on the complexity of the case. By comparing the Joint Petition process, it already takes up around 6 to 9 hence what more when is a Single Petition. Remember earlier I had explained on the Decree Nisi and Absolute Decree? It would be the same here as well. Remember even after obtaining the Absolute Decree Nisi, you would still need to go to the NRD in Putrajaya to update your marriage status.
In regard to the fees (I know everyone would be interested to read this part hahahaha), the answer is yes, it is much more expensive or costly I would say as it is much more complex and longer process.
In conclusion, there is a quote that goes “ Be strong enough to walk away from what isn’t best for you and be patient enough to wait for the blessings you deserve”. The key for divorce (contested) is patience and courage because the best has yet to come. I would have to say the main purpose of this article is create awareness to people who are afraid and confuse on the process of divorce. If readers have any further questions on divorce matters, do feel free drop us a message (whatsapp / email) or call us.
BY BENJAMIN LEONG
Disclaimer: 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.