A DIVORCE OF A MARRIAGE MAY BE GRANTED ONLY BY A COURT COMPETENT JURISDICTION. YOU MAY PETITION FOR A DIVORCE :
- by mutual consent, i.e. both parties consent to the divorce, by way of a joint petition; or
- if there is no mutual consent, by way of a contested petition.
DIVORCE BY MUTUAL CONSENT
Before you can joint petition for a divorce by mutual consent, the following requirements must be fulfilled:
- The marriage must have been registered or deemed registered under the Act or a law that provides for monogamous marriage
- Both of you must be domiciled in Malaysia at the time you present your petition for divorce
- You must have been married at least two (2) years at the time you present your petition for divorce, unless the Court grants you special permission.
You may apply to Court for such special permission but you must show that your case is one of exceptional circumstances or hardship.
- You must show in your petition that your marriage has irretrievably broken down.
To show such irretrievable breakdown, you must prove at least one of the following facts:
- your spouse has committed adultery and you find it intolerable to live with your spouse;
- your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her
- your spouse has deserted you for a continuous period at least two (2) years before the date of your petition; or
- both of you have lived apart from each other for a continuous period at least two (2) years before the date of your petition
(a) Reference to a Conciliatory Body, as stated in the Section Contested Petition to Divorce (paragraph 2) is not required.
CONTESTED PETITION TO DIVORCE
The requirements under Section Divorce by Mutual Consent (paragraph 1) (a), (b) and (c) are also applicable in the case of a petition filed by one party (i.e. where there is no mutual consent)
In addition, you must have referred your matrimonial problems to a Conciliatory Body at the Registry of Marriages in the district you reside and the Conciliatory Body must have certified that it has failed to reconcile both of you.
The Conciliatory Body will call both parties for meetings and try to resolve your matrimonial difficulties within six (6) months, failing which it will issue you a Certificate of Reference to enable you to petition for a divorce.
You may apply to Court to be exempted from referring your case to the Conciliatory Body if :
- you allege that you have been deserted by and do not know the whereabouts of your spouse;
- your spouse is residing abroad and it is unlikely that he/she will enter Malaysia within six (6) months after the date of petition
- your spouse has been required to appear before a Conciliatory Board and has willfully failed to attend;
- your spouse is imprisoned for term of five (5) years or more;
- you allege that your spouse is suffering from an incurable mental illness; or
- the Court is satisfied that there are exceptional circumstances which make reference to a Conciliatory Body impracticable.