- Marriage is a voluntary union between a man and a woman for life to the exclusion of all others. It is a ceremony which allows a man and a woman to legally cohabit and have children.
- Even though a man and a woman cohabit, majority of them do not spend 24 hours together in the same roof. Covid-19 has successfully tested marriage couples all over the world and is expected to lead to an increase in marriage break-ups because couples are being kept in self-isolation together.
- China is experiencing a spike in the number of divorce rates as psychologists claimed that self-quarantine has caused relationships to falter.
- Whereas Japan came up with the idea of temporary apartment rentals to stressed spouses under lockdown, hoping to avoid ‘coronavirus divorce’.
- Malaysia has implemented Movement Control Order (“MCO”) from 18.3.2020 to 28.4.2020 (may be extended by the government). During the MCO period, we have been contacted by potential clients to provide FREE legal advice on divorce, and we have also received instructions from new clients to prepare cause papers as they wish to file divorce petition after the MCO is lifted.
- Before 1 could get a divorce in Malaysia, the parties must have registered their marriage with the National Registration Department (“JPN”); the marriage must be valid; and the parties are domiciled in Malaysia.
- There are 3 types of petitions, i.e. Joint Petition, Single Petition, and Annulment Petition.
- Joint Petition
8.1 To file a joint petition, the parties shall mutually agree that their marriage should be dissolved, and consent to all the terms stipulated in the petition;
8.2 There would be no issue on custody of children, maintenance, division of assets, etc. If there is, the parties shall discuss, until the final terms are agreed upon;
8.3 Cause papers shall be filed in Court, and the parties would have to attend court for 1 time during the hearing of the joint petition before the Judge;
8.4 Occasionally, a joint petition could also be handled by 2 different law firms, to protect the interest of each party, and to negotiate for better terms;
8.5 A decree nisi will be granted by the court. After 3 months of cooling off period, a decree absolute will be granted.
8.6 This petition is commonly filed, saved time and costs of the parties.
- Single Petition
9.1 Only 1 party (“petitioner”) wants a divorce.
9.2 The following ought to be proven by the petitioner: -
a) They have been married for a minimum of 2 years;and
b) Reconciliation has been attempted;and
c) Irretrievable breakdown of marriage;and
d) Proof of breakdown, i.e. adultery, deserted/lived apart for 2 years, respondent’sbehavior is such that petitioner cannot reasonably be expected to live with the respondent;
ORe) Conversion to Muslim
9.3 Since the terms of the divorce are not agreed upon, the common issues arising from this petition would be maintenance, custody, and division of assets.
9.4 Maintenance: -(i) Maintenance for the ex-wife
The court may order a man to pay maintenance to his ex-wife by considering her means, her needs, the degree of responsibility attributed for the breakdown of the marriage. Maintenance order will end upon death, remarriage, or living in adultery. A committal proceeding could be filed against the party who refused to pay.
(ii) Maintenance for the ex-husband
The court will only order a woman to pay maintenance to her ex-husband, if he is incapacitated wholly or partially (medical report is needed). The court will consider the degree of incapacitation and the ex-wife’s means.
(iii) Maintenance for the legitimate child
The court may order a man to pay maintenance for the benefit of his child and the maintenance order will end when the child reached the age of 18 years or until ceasing of physical or mental disability. Recovery of maintenance would be 3 years from the date of the claim from the defaulting party.
(iv) Maintenance for the illegitimate child
The court may order a man to pay maintenance.
9.5 Custody: -(i) Child below 7 years old
The custody of the child below the age of 7 to be given to the mother. However, it is a rebuttable presumption. The father has the burden to prove that he is a better parent for the child, if he wants the custody of that child. The court will consider the welfare of the child.
(ii) Child above 7 years old
The court will consider the welfare of the child, have regard to the wishes of the parents, and wishes of the child by interviewing them.
9.6 Division of Property: -
Any assets acquired by the parties during the marriage by their joint efforts or the sale of any such assets could be divided between the parties. The Court shall have regard to the contribution of each party in terms of monetary and non-monetary contribution, debts owing, and the needs of the children. Assets also includes savings, EPF and properties.
9.7 The cause papers for single petition are more complicated than joint petition, the parties ought to prepare for the hearing and probably attend court more than 1 time. At the end, the court will grant a decree nisi, and after 3 months, a decree absolute, to end the marriage.
9.8 However, this petition will take a longer time to complete, and higher costs. - Annulment Petition is only applicable for void and voidable marriages: -
10.1 A marriage is void if at the time of the marriage, either party was already lawfully married to another party; either party is below the age of 18 without special license by the Chief Minister, and parties within prohibited degrees of relationship;
10.2 A voidable marriage however is a marriage that has not been consummated, no valid consent, mentally disordered, suffering from disease in a communicable form, or at the time of marriage the wife was pregnant by another person other than the husband. - An annulment cancels a marriage, deletes and declares that the marriage never existed. Whereas a divorce is the ending of a valid marriage.
- For further information, please feel free to contact the partners [Ms. How 0122275560 & Cik. Hospera 01131454088] for legal consultation in respect of divorce / annulment, or email us at Alamat emel ini dilindungi dari Spambot. Anda perlu hidupkan JavaScript untuk melihatnya..
For more information, please do not hesitate to contact the partners: 012-2275560 (Yvonne) and/or 011-31454088 (Nor Hospera Roswina); or email us at Alamat emel ini dilindungi dari Spambot. Anda perlu hidupkan JavaScript untuk melihatnya.
DISCLAIMER:
1. This update is intended for your general information only. It is not intended to be nor should it be regarded as or relied upon as legal advice. You should consult a qualified legal professional before taking any action or omitting to take action in relation to matters discussed herein
2. You are free to reproduce or republish the contents of this website in any media, provided that it is expressly stated that the content was “originally published on howhospera.com.my” and contains a link back to the original post on this website.