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Divorce Lawyer Malaysia
Top 10 Questions Answered
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Finding a Divorce Lawyer in Malaysia
Looking for a divorce lawyer in Malaysia to end the marriage legally can be disheartening.
In reality, opting for divorce as the only avenue when a marriage irretrievably breaks down is hard to acknowledge as it involves emotions & memories. It gets harder when the spouses have joint-assets and kids.
Dealing with broken marriage and finding a mid-way to achieve an agreement for the matrimonial assets, maintenance for wife & kids along with the child custody are not easy to deal with. What more when the parties unaware of their legal rights with regards to the above when it comes to divorce proceedings in Malaysia.
Here's what you need to know about divorce in Malaysia for Non Muslims
# Question 1
Q: How many types of divorces are there in Malaysia?
A : There are two (2) types of Divorce Proceedings available in Malaysia:
- Joint Divorce Petition (also known as Mutual Divorce)
- Single Divorce Petition (also known as unilateral Divorce)
# Question 2
Q: What is the difference between Joint Divorce Petition and Single Divorce Petition?
A : The difference can be seen as the name itself suggests:
- Joint Divorce Petition – Spouses applying for divorce together. Both the spouses will be addressed as Petitioners.
- Single Divorce Petition – Any one of the spouse will apply to the High Court of Malaysia for Divorce. The spouse that applies will be known as Petitioner. The spouse that will be responding to the Divorce Petition will be known as Respondent.
# Question 3
Q: Can the spouses apply for divorce in Malaysia anytime?
A : No. The law has clearly indicated that parties can only proceed with divorce after two (2) from the date of the marriage (Registered marriage).
# Question 4
Q: Do spouses require to stay separately for more than two (2) years before proceedings with Divorce?
A : This is one of the grounds that can be used by spouses to go with divorce in Malaysia by way of Single Divorce Petition.
In the case of Joint Divorce Petition, spouses can proceed with divorce irrespective of the two (2) years separation.
# Question 5
Q: What are the other grounds to proceed with Divorce in Single Divorce Petition?
A : The grounds to proceed with single divorce petition has been spelt out in S.54 of Law Reform (Marriage & Divorce) Act 1976 (commonly known as LRA 1976):
- One of the spouse committed adultery;
- Respondent’s behaviour (other spouse) is unreasonable for Petitioner to continue with the marriage;
- The Respondent (other spouse) has deserted the Petitioner for more than two (2) years;
- The Spouses staying separately for more than (2) years
# Question 6
Q: Can a spouse directly apply for a Single Divorce Petition?
A : No. The spouse wishing to proceed with single divorce petition in Malaysia requires to proceed with a counselling session thru Marriage Tribunal (usually Jabatan Pendaftaran Negara) to comply with S.106 of LRA 1976. The said body needs to certify that it has failed to reconcile the parties thru a certificate commonly known as KC29.
# Question 7
Q: Is there any exemptions to this rule?
A : Yes. If a spouse can show any of the following circumstances, the requirement to refer the matrimonial disputes to the conciliatory body can be exempted. However so, this needs to be done by way of Originating Summons to the Court first.
1. The spouses been deserted for very long and do not know the whereabouts of the other spouse;
2. The other spouse is residing in oversea and is unlikely back to Malaysia anytime soon;
3. The other spouse has wilfully failed to attend before the conciliatory body;
4. The other spouse is imprisoned for more than five (5) years;
5. The other spouse is suffering from incurable mental illness;
6. The court is satisfies that there are other circumstances that make reference to conciliatory body is impracticable
# Question 8
Q: Does it take very long to settle the Divorce Proceedings in Malaysia?
A : It takes about 1-4 months on average for the complete process, inclusive of extracting the Final Orders / Decree from court for Joint Divorce Petition.
As for Single Divorce Petition, it can take about 6 months to a maximum of 3 years or even more depending on the complexity of the case itself, inclusive of trial.
# Question 9
Q: Is the fee for Joint Divorce Petition and Single Divorce Petition the same?
A : Usually, the fee for Joint Divorce Petition is cheaper than the Single Divorce Petition.
# Question 10
Q: What are the issues will be tackled by a divorce lawyer in Malaysia when a Client meets them?
A : Lawyer who specialises in Divorce usually ask the following questions to their Client:
- Whether a marriage is more than 2 years;
- Is there any kids below the age of 18;
- Is any of the child needs any special care;
- Is the any joint properties or matrimonial assets accrued during the marriage;
- Was the wife a housewife or an income earner;
- What was the level of contribution done by each spouses towards the matrimonial home and matrimonial assets
Custody - Being Part of Divorce!!!
Who gets the custody of the kids in a divorce proceedings? father or mother? Speak to a Divorce Lawyer Today
When The Issue of Custody Comes into The Picture?
In Malaysia, generally issues related to custody of the kids arises when the spouses wanted to get a divorce, irrespective of a joint petition divorce (also known as divorce by mutual consent) or single petition divorce.
The spouses who opt for joint petition divorce (a.k.a divorce by mutual consent) would have generally made up their mind amicably with regards to the custody of their kids and the respective arrangement to take place after divorce.
In single petition divorce, the spouses would normally contest/fight for the custody of their kids and the Court will ultimately decide the outcome based on following factors:
- Welfare of the child
- Wishes of the parents
- Wishes of the kids if they are capable of independent opinion. (Take note that there is a rebuttable presumption that it is good for a child below seven (7) years old to be with the mother)
When Can I Make a Custody Application?
Anytime, i.e during a divorce proceedings or before initiating it.
Speak to us today to know more and how to go about the custody of your kids irrespective pre, at, or post divorce proceeding. .
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For Maintenance & Alimony
What is The Basis for a Man/Husband/Father to Pay Alimony & Maintenance for the Wife & Kids?
When a marriage breakdowns irretrievably, the next immediate question that cones in the mind of the wife is where to find a divorce lawyer in Malaysia and how to deal with her survival. In the event there are any kids from the said marriage, then the maintenance of the kid also comes into the picture. There are provisions for the husband to pay maintenance for the wife and the kid in a divorce proceeding. But this is not automatic. It need to be specifically pleaded in the prayers. There should be an understanding between the parties if it is a joint petition divorce on what to pay and the amount etc. In a single petition divorce, the court will decide this based on the circumstances of the case.
As a General Rule, the answer is a YES. S. 77 Law Reform (Marriage & Divorce) Act 1976 provides that the court may order a man to pay maintenance to his ex-wife during court proceedings and after the divorce.
Take note that the court may order the woman to pay maintenance to her ex-husband. ONLY if he is incapable of earning a livelihood by reason of mental/physical injury or ill health.
The court will consider primarily the earning capacity & financial needs of the wife & husband.
The court generally make an order of maintenance in favour if the wife. The amount might be reduced if the wife is employed with reasonable income, as opposed to being a homemaker.
The court also will look at how much the spouses contributed towards the breakdown of the marriage. The wife may get a lower amount of maintenance if the wife had substantially caused the breakdown of the marriage.
Take note that the right to maintenance stops if the spouse is living in adultery or of he/she remarries (S.82 Law Reform (Marriage & Divorce) Act 1976)
S. 92 Law Reform (Marriage & Divorce) Act 1976 places the responsibility of maintaining a child on either parent.
However, it will become the duty of the father to maintain a child (S.93 of the Act), if
- he refused/neglected reasonably to provide for the child
- he deserted his wife & child
- during the determination of a divorce proceedings
- when making or subsequent to making an order to place the child in the custody of another
Take note that the court can award the mother to contribute towards the maintenance of the child if the court is satisfied that the mother is able to do so.
The child maintenance expires once the child attains 18 years old. However, Court may order the father to pay for the child’s tertiary education as per the case of Shantini Pillay a/p Narayanasamy Pillay vs. Kannadasan a/l Narianasamy
The actual monetary amount is assessed based on:
- financial means of the parents
- needs of the child
- lifestyle of the parties during marriage
There is no fixed formula to calculate. Your divorce lawyer from Malaysia will need to assess the above factors & to advice you further.
asset Division in a Divorce
plan of Action
Asset Division in a Divorce Proceeding in Malaysia!!!
The issue of asset division always give rise when a marriage irretrievably breaks down. At this point, the spouses would want to divide the assets. Sometimes, they achieve the outcome amicably. At times, the court need to come into the picture. This is more often in the case of single petition divorce vs joint petition divorce. The divorce lawyer will be able to guide you based on your requirements on the best outcome for both parties (joint petition) or one party (single petition).
S. 76 Law Reform (Marriage & Divorce) Act 1976 empowers the Malaysian courts to order the division of assets between the spouses acquired during marriage
It is not necessary that the asset splits equally. The principles governing this jointly acquired properties are set out in S.76(2) of Law Reform (Marriage & Divorce) Act 1976:
- the extent of contributions made by each party in money, property or work towards acquiring the assets
- any debts owing by either party which were contracted for their joint benefit
- needs of the minor children, if any, of the marriage
The Court will decide the proportion of the asset division after assessing the above principles on case by case basis.
It depends. If the assets has been substantially improved by the other spouse during the marriage, it can be subjected to the division.
S.76(3) & S.76(4) Law Reform (Marriage & Divorce) Act 1976 deals with this. It says that the Court will take into consideration the extent of contribution made by the party who’s name not on the assets and the needs of the minor children, if any.
The Act is silent on what can constitute as matrimonial assets. But based on case laws, following forms part of matrimonial assets:
- Matrimonial home
- All landed properties acquired during marriage
- Cars
- Cash in banks/jewels/shares
- Contributions made to the Employee’s Provident Fund (EPF) during marriage
- Insurance policies/ gratuity payments/ employment/ retirement benefits accumulated during marriage
- Assets owned by one spouse before the marriage PROVIDED it has been substantially improved by the other spouse during marriage or by joint efforts
- Gifts from spouse
Note that in certain circumstances, inherited properties will be subjected to the asset division in the event can establish that it has been substantially improved by one spouse or joint efforts.
Workflow in a Divorce & Matrimonial Proceedings
01
One step ahead
Studying the background of your case gives us the privilege of advising & strategising for your case be it for mutual outcome or the other way.
02
building your case
With the details / information shared with us, we will then start building the frame work for you.
03
achieving your goals
Getting the papers ready for filing and proceed with the case with the objective of getting the best for you.
we are part of Your Journey all the way through till Legalising everything.
Speak to us Today!!!
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our professional services in Matters Related to Family Include:
It is not just Divorce when it comes to Family Disputes.
Issues that may arise in a Divorce or Family Disputes:-
- Divorce Proceedings by way of Joint Petition or Single Petition
- Annulment
- Judicial Separation
- Custody
- Maintenance Order
- Other Ancillary Reliefs