(A) Relevant Statute
1. Law Reform (Marriage and Divorce) Act 1976 (“The Act”)
2. Divorce and Matrimonial Proceedings Rule 1980 (“The Rules”)
- The Act applies to :
i) All persons in Malaysia*; or
ii) All person domiciled in Malaysia but are resident outside Malaysia
-EXCLUDING
i) Muslims; or
ii) Any native of Sabah & Sarawak; or
iii) Any aborigine of West Malaysia whose marriage is governed by the native customary law or aboriginal custom unless he elects to marry under the Act.
(*please take note that a person who is a citizen of Malaysia shall be deemed, until the contrary is proved to be domiciled in Malaysia.)
(B) Validity on Marriage
Prior to 1.03.1982, those marriages which have not been registered would be recognized under the Law provided if the parties to the marriage able to show the evidence that they had undergone the customary marriage. i.e- wedding invitation cards, photographs etc.
After the 1.03.1982, all the marriage must be registered under the Act and must be monogamous.
(C) Restriction on marriage
(i) Either party is under age of 18
§ If female is above age of 16 but below 18 – license must be obtained from the Chief Minister
(ii) A person who is below 21
§ Must obtain the consent in writing from his/her father or if his/her father is dead or he/s she is illegitimate child- consent must be obtain from his/her mother.
§ If he/she is an adopted child- must obtain from his/her adopted father. If his adopted father is dead, then obtain from his/her mother.
§ Where consent is unreasonably refused or impracticable – may seek consent from the court by way of file in application under s.12 of the Act.
(iii) Both parties are same gender – female & female or male & male
(iv) Either one party is still married – bigamy is an offence under s.494 of penal code
(v) Prohibited relationship – no incest allowed
(* Exception- under Hindu customary law- a Hindu may marry his sister’s daughter (niece) or her mother’s brother (uncle) which is permitted under the Act.)
(D) Divorce
x Jurisdiction of the Court:
(i) Marriage must has been registered; or
(ii) Deem to be registered under this Act; or
(iii) Foreign law which provides for monogamous marriages, and
(iv) Both spouses live in Malaysia or consider Malaysia to be their home.
x Restriction
§ Before expiry of 2 years from the date of marriage- petition cannot be presented to the court.
§ may obtain leave from the court if the marriage is still hasn’t reached 2 years time- the applicant must show the exceptional circumstances or hardship suffered
x Types of Divorce
1. Mutual Divorce
§ The marriage must stand for at least 2 years except for exceptional or hardship cases
§ No need to go through the Marriage Tribunal (conciliatory body), therefore, certificate of Tribunal is not required.
§ must state the reason for divorce but need not state the cause of the breakdown
§ Both parties have consented to the term of the divorce i.e- division of the matrimonial property, custody of the children.
§ Faster than a Single Petition
2. Contested Divorce
§ The marriage must stand for at least 2 years except for exceptional or hardship cases
§ Reconciliation proceeding must be go through before present the petition for divorce, which mean the Certificate of Tribunal is required. ( it takes about 6 months )
§ Must state the reason for break up and specify the cause which shows the marriage has completely broken down and has to prove at least one of the following:-
a) 2 years separation;
b) 2 years desertion ( left for continuous period at least 2 years);
c) Adultery;
* The act permits the alleged adulterer or adulteress (if any) as co-respondent.
* There may be a prayer that the co-respondent be condemned in damages in respect of the alleged adultery
d) Unreasonable to be with the marriage ( cannot expected to live with him/her)
(E) Other grounds for divorce
(a) Presumption of Death
§ If the other party to the marriage has been continuously disappeared for at least 7 years and the petitioner has no reason to believe that party has been living within that time.
(b) Conversion to Islam
§ Such conversion does not cause a marriage dissolved automatically but it provides a ground for the other party who has not converted to petition for divorce.
* take note that the party who has not converted only may petition for divorce 3 months later from the date of conversion
* the petition may be made before the expiration of the 2 years of the marriage
(c) If husband is not living in Malaysia or does not consider Malaysia to be his home
- wife petitioner still may present the petition for divorce if :-
(i) her husband left her or was deported from Malaysia, and he considered Malaysia to be his home before the desertion or deportation; or
(ii) she has lived in Malaysia for 2 years preceding the presentation of the petition.
(F) RIGHTS of the affected parties
(a) Custody of the child :
§ May apply at any time, even no divorce or judicial separation case.
§ Rebuttable presumption – the biological mother will have the custody of the child who are 7 years old and below.
§ Court will take into consideration of the welfare of each child of the marriage, wishes of the parents and whether the child can express independent opinion.
§ All the cases of custody or maintenance of the child the court must have regard to the advice of the welfare office.
§ The order for custody may include the matters relating to the child’s residence, education and religion, temporary guardianship to someone other than the legal guardian and the right to access to the children for parent or relatives not granted custody.
§ The custody of the children shall expire on the attainment of 18 years old, or where the child is under physical or mental disability on the ceasing of such disability, whichever is later.
(*the definition of the “children” is fall under the purview as below:-
i. children of both parties who is under age of 18 years old; or
ii. the children of one party to the marriage accepted by the other party; or
iii. an illegitimate child; or
iv. child legally adopted by either of the parties to the marriage.)
(b) Maintenance ( to wife or/and to child ) :
To Wife and to Children
§ Assessment of maintenance is based on primarily on the living lifestyles that they are used to, the financial affordability of the husband, the needs of the wife, number of children, ages of the spouses, how long the marriage has lasted, who is more at fault for the breakdown of the marriage, contribution made during the marriage.
§ If the husband has another woman, the court might give less maintenance to the wife because the husband has another family to take care of.
§ Maintenance to wife shall cease if the recipient dead, or re-marries or lives in adultery with another person.
§ The maintenance to the children shall expire on the attainment of 18 years old, or until completion of the first degree.
§ Arrears of maintenance for wife as well as children are recoverable for a maximum period of 3 years.
§ Arrears are recoverable if they accrued before a receiving order was made against the defaulter and shall be provable in his bankruptcy.
§ Arrears are recoverable as a debt due from the defaulter’s estate if they accrued before the defaulter’s death.
(c) Division of Matrimonial Property
§ Includes house, car, shares, cash in the bank and any other properties bought after the marriage.
§ The division of the property is usually 2/3 to the husband and 1/3 to the wife where there is no monetary contribution by the wife.
§ If the wife had made monetary contributions to the purchase of an asset, then the division is according to the contribution made.
§ If monetary cannot be ascertained, the an equal division of the assets will be decided by the court.
(d) Injunction
· Injunction to prevent the other parent from removing the child form Malaysia or for the right to remove the child out of Malaysia.
· Reversal of or injuction to prevent a sale transaction or transfer of assets which is intended t reduce the maintenance payments.
· Injuction to prevent the other party to the marriage from disturbing or bothering during or after the court case related to the marriage.
(G) Procedure for divorce
(A) Mutual Divorce
(1) Get a lawyer to file joint petition which state :
- details of marriage and children, if any
- previous court cases relating to marriage
- maintenance
- custody of the children
- right to access of their children
- division of the matrimonial assets
(2) Both parties must appear in court unless dispensation has been given by the court
(3) This process can be taken for 1year to 2 years.
(B) Contested Divorce
(1) Meeting by both spouses with the Marriage Tribunal
- the Tribunal will try to reconcile both of the spouses.
- the reconciliation process will be taken about 6 months.
- if the Tribunal fails to reconcile both of the spouses, a Certificate of Tribunal will be issued.
Exemption:-
a) The other spouse cannot be found (deserted); or
b) The other spouse refuses to attend the meeting; or
c) The other spouse has been imprisoned for 5 years or more; or
d) The other spouse is suffering from an incurable mental illness; or
e) The other spouse resides abroad and it is unlikely to come back to Malaysia within the next 6 months; or
f) Court is satisfied that the meetings are not practical.
(2) Get a lawyer to file petition which state:
- details of marriage and children, if any
- previous court cases relating to marriage
- proof of complete breakdown of marriage
- maintenance
- custody of the children
- right to access of their children
- division of the matrimonial assets
(3) The petitioner must appear in court but the other spouse (respondent) can choose not to appear
(4) This process can be taken more than 2 years subject to the complication of the case.
(C) Where DECREE to divorce has granted
x Once the court is satisfied that there should be a divorce, Decree Nisi shall be granted
x Decree Nisi will be made absolute after a stipulated period ( usually is 3 months )
x During the stipulated period, other spouse can be allowed to show why the marriage should not be dissolved (which mean if they are intend to get together)
x As long as the Decree Nisi has yet to be made absolute, the spouses may get together and thereafter apply for the Decree to be cancelled
x They also cannot re-marry to anyone within the stipulated period
x After the stipulated period expired, the court will make the Decree absolute
x once the Decree Nisi is made absolute – both parties can be re-marry
(H) OTHER RELIEFS
(a) Judicial Separation
§ This can be opted if one party does not want to divorce but refuse to live together
§ Do not require to attend the reconciliation meeting
§ Grounds are exactly the same as per the grounds for single divorce petition
§ This may be apply within 2 years of the marriage
§ The applicant may pray for maintenance and custody of the children
§ The parties cannot be re-marry
§ Can still petition for divorce
(b) Annulment of marriage (cancellation of the marriage)
§ Application can be made when the marriage is void or voidable
(bi) VOID marriage
(i) Either one party is still married with someone (former marriage was then in force) at the time of the marriage; or
(ii) a male person marries under 18 years old or a female who is above 16 years old but under 18 years marries without obtain license from Chief Minister; or
(iii) Both parties are under prohibited relationship; or
(iv) Both parties are not respectively male and female (same gender).
(bii) VOIDABLE marriage
(i) The marriage has not been consummated owing to the incapacity of either party to consummate it; or
(ii) The marriage has not been consummated owing to the willful refusal of the respondent to consummate it; or
(iii) Either party to the marriage did not validly consent to it - duress, mistake, unsoundness of mind;or
(iv) At the time of the marriage, either party, though capable of giving a valid consent, was a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 of such a kind or to such an extent as to be unfit for marriage; or
(v) At the time of the marriage, the respondent was suffering from venereal disease in a communicable form;
(vi) At the time of the marriage the respondent was pregnant by some person other than the petitioner.
(I) ADDITIONAL
Marriage outside Malaysia
Marriage outside Malaysia other than one solemnized in Malaysian Embassy is recognized as long as the following requirements are fulfilled:-
I. Legally married in that country; and
II. Each spouse would have been qualified to be married under his/her home country law; and
III. Either party is a citizen of Malaysia or considers Malaysia to be his/her home and both are qualified under Malaysian law to be married.
Presented By: Mr. Barry Tan Cheng Ho
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