Frequently asked question (FAQ) on divorce for non-muslim; insight by a Malaysian divorce lawyer
Updated: Oct 2, 2019
Q: Which Court has the jurisdiction to grant a decree for divorce?
A: Only the High Court has the jurisdiction to grant a decree for divorce. The divorce petition usually will be filed within the local jurisdiction of either one of the petitioners i.e. if the husband is having his residence address at Kuala Lumpur then the divorce petition will be filed at the Kuala Lumpur Court Complex.
Types of divorce
Q: How may types of divorce are there?
A: Generally there are three types and they are as follows:
1. Divorce on the ground of conversion to Islam; Section 51 Law Reform (Marriage and Divorce) Act 1976
2. Divorce by mutual consent i.e. joint petition; Section 52 Law Reform (Marriage and Divorce) Act 1976 See here for detail.
3. Divorce by way of a contested or single petition; Section 53 Law Reform (Marriage and Divorce) Act 1976
Divorce by mutual consent
Q: What is divorce by mutual consent or joint petition?
A: This in essence is a divorce on the basis of an agreement reached between the parties. As long as the parties have reached a consensus then the Court is prepared to give effect to it provided it is legal. Parties will usually agreed on the terms of the divorce such maintenance of wife, maintenance for the child (if any), custody of the child (if any) and division of matrimonial assets.
Access to children
Q: Is it possible for me to restrain my spouse from having access to the children altogether in a joint petition?
A: It is very unlikely for the Court to allow any such order notwithstanding the parties have mutually agreed to it.
Legal fees for divorce by mutual consent/joint petition
Q: How much is the legal fees for divorce by mutual consent or joint petition?
A: There is no fixed rate but it is subjected to the market rate. The legal fees will vary depending various factors such as complexity of the matter, choice of counsel and location. Usually the legal fees for divorce by mutual consent is much lower than contested or single petition.
Attendance on hearing date
Q: Who must be present on the hearing date of joint petition?
A: The lawyer will have to be present. As a general rule both husband and wife must also be present but the attendance of one party can be dispense with by the Court provided there is a valid reason given. However, it must be noted that recent trend seems to suggest that the Court is reluctant to allow for dispensation of party and the attendance of both parties are usually required.
Duration for court proceeding in joint petition?
Q: How long does it take for the Court to dispose the joint petition?
A: Usually it will take between 3 to 4 months.
Contested or single petition
Q: what is divorce by way of contested or single petition?
A: This is where one party will file a divorce petition against the other on the ground that the marriage has irretrievably broken down. Contested or single petition usually will be file if the parties are unable to come to an agreement to file for a joint petition.
Marriage has irretrievably broken down
Q: What does the marriage has irretrievably broken down means?
A: It means either one of the followings:
1. that the other party has committed adultery and the petitioning party finds it intolerable to live with the other party;
2. that the other party has behaved in such a way that the petitioning party finds it intolerable to live with the other party;
3. that the other party has deserted the petitioning party for a continuos period of at least 2 years immediately preceding the presentation of the petition;
4. that the petitioning party and the other party have lived apart for a continuos period of at least 2 years immediately preceding the presentation of the petition.
Q: what is a marriage tribunal?
A: It is a statutory body established for the purpose of effecting a reconcialiation between the parties.
Q: Where is the marriage tribunal located?
A: it is located at Jabatan Pendaftaran Negara (JPN). Details can be seen in this link: Marriage tribunal
Q: Why must petition must go through the reconciliation process in marriage tribunal?
A: It is because the Court requires a certificate from the marriage tribunal before the petitioner can file for a single petition.
Q: Do I need to go through the reconcialition process in marriage tribunal if I am filing for a joint petition?
A: No. You don’t need to.
Q: Can your lawyers attend the marriage tribunal on your behalf?
A: No. You must attend to it yourself.
Q: How the Court will deal with the children in single petition?
A: Court have the power to award custody to either or both the parties. Ultimate consideration is the welfare of the children.
Maintenance of spouse
Q: Who is entitled to spouse maintenance?
A: As a general rule the husband have the legal obligation to maintain his ex wife but in limited situation the wife is responsible to maintain the ex husband. Example of limited situation is when the ex husband is suffering from any incapacity or physical injury or ill-health.
Q: How the Court will assess the maintenance?
A: Court will assess based on the means and needs of the parties having regard to the degree or responsibility for the breakdown of the marriage.
Duration for court proceeding in contested petition
Q: How long does it take for the Court to dispose the contested petition?
A: Usually it will take between 6 to 9 months excluding appeals.
Q: If I am dissatisfied with the decision of the High Court can I file an appeal?
A: Yes. You can appeal twice, first to the Court of Appeal and the second and final appeal to the Federal Court subjected to leave of appeal from the Federal Court.
Contested petition or joint petition
Q: should I file for joint petition or contested petition?
A: if parties can agree to divorce and the terms of the divorce. It is always better to file for a joint petition because it is cheaper and faster.
Q: Can I remarry my former spouse after the divorce?
A: Nothing to suggest you are not allowed to remarry your ex husband or ex wife.