Divorce. Join petition or contested petition?

A DIVORCE OF A MARRIAGE MAY BE GRANTED ONLY BY A COURT COMPETENT JURISDICTION. YOU MAY PETITION FOR A DIVORCE :

1. by mutual consent, i.e. both parties consent to the divorce, by way of a joint petition; or
2. 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:

1. The marriage must have been registered or deemed registered under the Act or a law that provides for monogamous marriage
2. Both of you must be domiciled in Malaysia at the time you present your petition for divorce
3. 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.
4. 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:

1. your spouse has committed adultery and you find it intolerable to live with your spouse;
2. your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her
3. your spouse has deserted you for a continuous period at least two (2) years before the date of your petition; or
4. 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.

DIVORCE

In Malaysia, there are two types of divorce of marriage for non-Muslims:
1) Divorce by mutual consent, i.e. both parties agree to the divorce
2) Divorce without mutual consent

DIVORCE BY MUTUAL CONSENT (JOINT PETITION)

Both parties to the marriage can jointly file a divorce where they can mutually agree to divorce. By a joint petition, both parties can freely decide on the maintenance for wife and children, custody and care of the children, division of matrimonial assets.

DIVORCE WITHOUT MUTUAL CONSENT (UNILATERAL/ SINGLE PETITION)

Either party to a marriage may file a petition to divorce without consent of the other party, on the ground that the marriage has broken down. The break down of the marriage can be grounded one of the reasons as follows:

1) that the other party has committed adultery;
2) that the other party has behaved in such a way that it cannot reasonably be expected to live together;
3) that the other party has deserted for a continuous period of at least 2 years; OR
4) that the parties to the marriage have lived apart for a continuous period of at least 2 years.

Common misconception: The parties to the marriage must be living apart for more than 2 years before a divorce can be filed.
Answer: No, not necessary. Living apart for more than 2 years is merely a reason to file for single petition divorce. There are other reasons to file for divorce as mentioned above.

WHO HAS THE RIGHT OVER THE CUSTODY OF THE CHILDREN?

In a joint petition, both parties can mutually agree to propose any arrangement for the children, including joint custody after divorce.

In a single petition, either party can make application for the custodianship. The court will decide the custodianship after considering all factors including: 1) The welfare of the children 2) The wishes of the parents 3) The wishes of the child if the child is eligible to express an independent opinion.
There is a rebuttable presumption that the custodianship of a child below 7 years belongs to the mother. Kindly take note that this is a presumption which is rebuttable by the father.

WHO HAS THE RIGHT & INTEREST OVER MATRIMONIAL PROPERTY?

In a joint petition, both parties can mutually agree to propose any arrangement in relation to the property. The parties can either sell the property then divide the net sale proceeds in any ratio, transfer it among themselves, hold it on trust then transfer to the children in future, in an agreed time frame before or after the divorce proceedings. The parties can even decide to maintain the current ownership of the property.

In a single petition, either party can make application for the division of matrimonial property. If the property is acquired by the sole effort of the party, the court may divide the property as the court thinks reasonable. The party upon whose effort the assets were acquired will receive a greater proportion. If the property is acquired by joint effort, the court may divide the property as the court thinks reasonable after considering factors like the extent of the contributions made by each party. The definition of contribution is inclusive of both financial contribution, and non-financial contribution.

WIFE & CHILDREN’S MAINTENANCE

Wife’s maintenance and children’s maintenance has to be identified separately in a divorce petition.
In a joint petition, both parties can mutually agree to propose any arrangement for the maintenance, including 1) no maintenance 2) monthly maintenance 3) lump sum maintenance for a fixed amount, or any flexible arrangement.

In a single petition, either party can make application for the maintenance and ancillary relief. The court will decide after considering all factors including 1) the needs of the wife / children 2) the living standard of the parties during marriage 3) the income of the parties.

HOW LONG DOES IT TAKE FOR A DIVORCE MATTER TO BE COMPLETED?

The actual time needed for may vary in each and every single case depending on the following factors: 1. The date of hearing granted by the court (whether it is early or late) 2. The complexity of the case 3. The time needed for both parties to reach a settlement (for joint petition’s case) 4. The efficiency of the lawyer appointed.

Generally, a joint petition divorce matter takes 6 to 9 months to be completed while a unilateral petition divorce (without mutual consent) matter takes more time to be completed. The divorce matter could take more time if it is contested.

WHAT ARE THE DOCUMENTS NEEDED FOR JOINT PETITION TO DIVORCE?

1) A copy of your IC (for Malaysian) / Passport (for Foreigner)
2) A copy of your spouse’s IC/ Passport
3) A copy of your children’s birth certificate & IC
If you do not have any of the above mentioned documents, you may engage a lawyer to extract a copy from JPN (“Jabatan Pendaftaran Negara”).

WHAT IS THE BRIEF & GENERAL PROCEDURE FOR JOINT PETITION TO DIVORCE?

1) Consult a lawyer.
2) With lawyer’s advice, discuss and make settlement with your spouse for the arrangement of children, property & maintenance (if any).
3) Sign the divorce petition and related documents prepared by your lawyer.
4) Wait for the hearing date after the filing of your application in the High Court.
5) Attend the hearing with your lawyer (if you or your spouse cannot attend the hearing, kindly refer to your lawyer for solutions)
6) Obtain divorce certificate at least three months after a divorce order is granted by the judge.

Note:
1) Parties do not need to attend any JPN tribunal for joint petition to divorce.
2) Parties do not need to be separated for 2 years before a joint petition to divorce can be filed.
3) Parties do not need to specify the reason for divorce in joint petition.

WHAT ARE THE BRIEF & GENERAL PROCEDURE FOR SINGLE/ UNILATERAL PETITION TO DIVORCE?

1) Consult a lawyer (Subject to your instruction, the lawyer may help to write an official letter to your spouse to indicate your intention to divorce, and to state the benefits of joint petition to divorce in comparison with single petition to divorce)
2) If the other spouse refuses to a Joint Petition to divorce, your lawyer may assist you to apply for JPN’s (“Jabatan Pendaftaran Negara”) Tribunal for 3 times of your attendances within 6 months. The purpose of the Tribunal is to reconcile the parties of the marriage.
3) After the tribunal, you may sign the divorce petition and file it in to the High Court.
4) Thereafter the procedure may be different depending on your spouse’s action subsequently when he / she receives the petition. Please refer to your lawyer for further information.

WHO SHOULD BEAR THE LEGAL FEE? HUSBAND/ WIFE?

For joint petition matter, there are two choices: 1) Either party pay for the whole legal fee 2) Both parties share the legal fee in a proportion that is mutually agreed
For single petition matter, each party has to bear their own legal fee generally.

HOW MUCH IS THE LEGAL FEES?

Generally, a joint petition’s legal fee is cheaper than a single petition’s (without mutual consent). The legal fee chargeable varies from one case to another depending on the following factors:

1) The complexity of the case as it affects the amount of time and skill a lawyer requires;
2) The complexity of the Petition’s Content (i.e. The complexity of the Divorce Arrangement & Settlement)
3) Whether or not the divorce petition is contested. Legal fee for contested matter is generally higher than uncontested matter.

DO YOU NEED A DIVORCE LAWYER?

Contact Our Panel Lawyers / The Author of this Article.

Other FAQs:

Foreign Marriage/ Divorce
Q: I am a foreigner in Malaysia who has registered my marriage overseas. Can I file for a divorce here?
A: Yes, if you are residing in Malaysia even if your marriage is not registered in Malaysia.

Q: I am a Malaysian who is residing overseas now. Can I file for a divorce in Malaysia?
A: Yes, you can sign the divorce documents overseas, and engage a lawyer to file your divorce in Malaysia.

Q: I am a Malaysian who had registered my marriage in Malaysia/ Embassy of Malaysia. I have obtained a divorce certificate from overseas, but is my divorce certificate recognized in Malaysia?
A: No. Your overseas divorce certificate is not recognized in Malaysia. You need to engage a lawyer to apply for local court’s declaration to give legal effect to your overseas divorce certificate, and update your marital status in JPN (“Jabatan Pendaftaran Negara”/ National Registration Department)

Two Years Separation Requirement

Q: Can I file for divorce within 2 years of my marriage?
A: Yes. It’s possible.

Q: Do I need to separate with my spouse for 2 years before a divorce can be filed?
A: No, not necessary.

Q: Do I get ‘automatic’ divorce when I have separated with my spouse for more than 2 years?
A: No. You will still need to apply for the divorce in court.

JPN
Q: Can I get a divorce by applying from JPN (“Jabatan Pendaftaran Negara” / National Registration Department) without engaging a lawyer?
A: No.

Q: I have attended JPN’s tribunal for 3 times, am I considered divorced?
A: No. You need to engage a lawyer to proceed for divorce.

Q: My divorce certificate is granted overseas. Can I submit the divorce certificate to JPN for them to update my marital status?
A: No. Your overseas divorce certificate is not recognized in Malaysia. You need to engage a lawyer to apply for local court’s declaration to give legal effect to your overseas divorce certificate, and update your marital status in JPN (“Jabatan Pendaftaran Negara”/ National Registration Department)

Spouse’s Issues
Q: My spouse refuses to divorce. Can I still file for a divorce?
A: Yes.

Q: My spouse refuses to sign any divorce document. Can I still file for a divorce?
A: Yes.

Q: I have lost the contact of my spouse/ my spouse has gone missing. Can I still file for a divorce?
A: Yes.

Q: My spouse is residing in overseas now. Can I still file for a divorce?
A: Yes.

Annulment
Q: What is annulment of marriage? Can I file for annulment?
Annulment is a legal procedure for declaring a marriage null and void. Please refer to a lawyer for more information.

Source: MyLawyer.com.my

Women file for divorce over hubbies’ unusual sex drive

TWO women have filed for divorce on grounds that their husbands’ unusual sex drive is linked to black magic.

The first case was the couple had been married for a year.

The riddle to the husband’s unnatural sex drive was answered when a relative of the wife saw the husband in the house when the family had seen him leave for work earlier.

The relative heard the husband’s voice in the bedroom and upon checking, found an ‘individual’ in the room looking exactly like the husband.

The wife had since filed a complaint with the religious department and applied for fasakh.

(Fasakh means ending a marriage by the Syariah Court after hearing the wife’s complaint).

In the second case, an 18-year-old woman had filed for fasakh after her husband asked her for sex more than 10 times a day.

According to the wife, the husband had the ritual of going to the bathroom before having sex with her.

It all started when he had sex with her 17 times on their wedding night. The wife did not suspect anything then as she thought he was merely performing his duty as a husband.

But when the situation persisted, she discussed the matter with her mother-in-law, who told her that it was a normal behaviour.

She told her own mother, who brought her to the religious department to file a report because the latter thought it was sexual abuse.

Investigation found that the husband’s demeanour was strange.

The wife and her family had a shock when they found “two individuals” that look alike in the bathroom.

Religious leader claimed that it was not impossible for a man to have sex many times in one night if he was “friendly with the devil”.

“It is not impossible for the devil to have carnal intercourse with the man’s wife.

“This happens because the devil can appear to look like the husband,” he said.

He said that while it was normal for a man to want sex two or three times a day, anything more than the usual would most probably not be the husband but the devil.

Source: Thestar Online @ 27/7/09.