Uncontested Divorce in Malaysia
If you are reading this for academic purpose - good for you. If you are reading because you are getting (or thinking to get) a divorce, we are sorry to hear that. But that is life, not all marriage is meant to last and sometimes divorce happens so that we can move on to a better future.
Few things you need to know before continuing to read this article are:
- We are not advocating separation - we only hope that this article will help guide you through the process of getting a divorce in malaysia.
- This article is only applicable to Civil Marriage (for muslim, please wait for our next article)
What is an Uncontested Divorce (Joint Petition Divorce)?
An Uncontested Divorce (as obvious as it sounds, still warrants some explanation) is when a married couple apply/file to the Family Court to dissolve their marriage together/jointly rather than separately. It is also known as Mutual Separation.
If you wanna read further (incase you're a law student), Section 52 of the Law Reform (Marriage & Divorce) Act 1976 (Act 164) sets out the details pertaining to dissolution by mutual consent (i.e. Joint Petition).
Which Court do you file in your Divorce Papers?
Only in High Court (Family Court division) which explains the cost - so be sure to consult with your Divorce Lawyer about the cost of filing the divorce papers as the fees may vary between each divorce lawyer).
How Do I Apply?
In an Uncontested Divorce, before the parties apply to the Family Court for such dissolution, the Divorce Lawyer will prepare the Petition and Affidavits (the divorce papers). Generally, the person who applies for the separation is referred to as the Petitioner while the person who intends to contest is referred to as a Respondent. However, if it is an uncontested divorce both parties will be addressed as Petitioners. The divorce papers will contain the terms that are agreed upon by both parties.
What are the terms to be agreed upon?
Since it is a mutual separation, parties will normally have to sit down, discuss and agree on matters such as guardianship and custody of children (if any), division of property, maintenances for both wife or husband and children and any matter pertaining to their marriage (I’ve had clients who include “Bonuslink” Cards as part of the agreed item in their application to the Family Court).
How long will it take ?
Generally, once the papers are filed, the Court will fix a date for hearing before the Judge (at his discretion). During the hearing date, both parties will appear before the Judge and the Judge will pronounce the dissolution. Unless any documents are not in order, it will usually not take more than three months.
(Important Note: If there exists event the slightest unresolved issue between parties prior to Hearing date before the Family Court - therefore it is important that parties agree on all the matters set out in the joint-petition)
(Important note 2: Based on Section 50 of Law Reform Act, all petitions can only be filed after two years of marriage, except on the ground of conversion to Islam or any exceptional circumstances or hardship suffered by the Petitioner, but the Court will consider the interests of any child from the marriage and whether there is any possibility of reconciliation between both parties. It is best to refer to your Divorce Lawyers on examples of “exceptional circumstances” for this matter and what to do if your marriage have not reach the two year mark)
Prepared By: Nurainie Haziqah