Divorce (Civil)

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Any person who wishes to apply for a divorce needs to be legally married.

If you were married after 1 March 1982 without registering the marriage, the marriage is invalid and the children will be considered illegitimate. If you were married according to traditional or customary rites before 1 March 1982, you have a valid marriage and it is considered to be registered.

A person once married, cannot marry again until his/her marriage has been dissolved by court order or the spouse dies. All valid polygamous marriage entered before 1 March 1982, are recognised under the present law.

Requirements for Divorce
  1. Your marriage must be registered or recognised by the present law.
  2. Both parties must be married for at least two years; and
  3. Both parties must have been living in Malaysia. However a wife can still file even if the husband is not in Malaysia if
    • her husband has deserted her and had been living in Malaysia before he left her.
    • the wife has continuously lived in Malaysia for 2 years just before filing the divorce.

Types of Divorce

By Joint Petition

This is where both parties agree to all the terms of the divorce. These includes custody of children, access to children, maintenance for spouse and children and division of the matrimonial assets. Both parties will file a joint petition in court through a lawyer. The court usually requires both parties to be present in Court on the day of the hearing of your Petition. This type of divorce is simpler, faster and cheaper.

By Contested (Single) Petition

If your spouse does not agree to present a joint petition, you will have to

a) Refer your marital problems tot he Marriage Tribunal at the office of the Registrar of Marriages where you last lived with your spouse. The Marriage Tribunal will try to reconcile both of you. If  this fails, the Tribunal will give you a certificate which you need to have to file for divorce in Court.

b) Prove that your marriage has irretrievably broken down on one or more of the following grounds i.e.,

  1. your spouse has committed adultery and you find it intolerable to live with him/her.
  2. your spouse has behaved in such a way that you cannot reasonable be expected to live with him/her (has been cruel to you, been violent towards you, failed or neglected to maintain you and/or children, etc).
  3. your spouse has deserted you for a continuous period of 2 years before you filed the divorce petition.
  4. both of you have lived apart for a continuous period of at least 2 years before you filed the divorce petition.

c) Prove your claims for

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  1. Custody or Access to Your Children.
  2. Maintenance For Yourself and/or Your Children.
  3. Your Share of Matrimonial Assets.

Court Procedure

Generally, your lawyer will have to file your divorce petition in court first. The court will then fix a hearing date for your case. You and your husband have to be present at this hearing. At the end of your case, the court will grant a ‘Decree Nisi’ which will last 3 months. At the end of the three months, the Decree Nisi will be made absolute — ‘Decree Nisi Made Absolute’ — and you will be legally divorced.

Time And Costs

It is difficult to ascertain the length of time and costs involved in a divorce. Only a rough estimate can be given.

Joint Petition : On average it takes three to six months, and may vary from RM2,500 to RM5,000.
Contested Petition : On average it takes a minimum of one year, and may cost a minimum of RM5,000. It could even go up to RM50,000 depending on the terms of the divorce.
For those with an income below RM2,000 you can approach the Legal Aid Centre of the Bar Council or the Biro Bantuan Guaman for free legal aid.

Judicial Separation

If you are opposed to divorce whether on religious or other grounds but you wish to live apart from your spouse, you may petition to the Court for a decree of judicial separation. In order to obtain such a decree, you must prove the same grounds as in a divorce petition. Once the Court grants judicial separation, you are no longer obliged to live with your spouse.

In a judicial separation, both you and your husband are still legally married, whereas once a divorce is granted, the marriage is legally ended and either of you is free to remarry. Similarly, couples who are judicially separated may reunite without the need to remarry. You may still petition for a divorce after a decree for judicial separation is granted.

Nullity of Marriage

You can apply to the Court for your marriage to be declared a nullity if your marriage is void or voidable, meaning your marriage will be annulled.

Void Marriage

Your marriage is deemed void if it falls under the following circumstances:

  1. Where at the time of marriage, either party was already lawfully married, the former spouse is still living and the former marriage is still in force.
  2. Where a male person marries under 18 years of age, or a female person who is above 16 years of age but under 18 years, marries without a special license granted by the Chief Minister.
  3. The parties are within prohibited degrees of (close family) relationship unless Chief Minister grants a special license.
  4. Parties are not respectively male and female.
Voidable Marriage

Your marriage will be voidable if it falls under the following circumstances

  1. The marriage has not been consummated due to the incapacity of either party to consummate it;
  2. The marriage has not been consummated due to the willful refusal of the respondent spouse to consummate it;
  3. Either party to the marriage did not validly consent to it, whether because of duress, mistake, unsoundness of mind or otherwise;
  4. At the time of the marriage, either party was a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 so as to be unfit for marriage;
  5. At the time of the marriage, the respondent spouse was suffering from a communicable venereal disease and the petitioner was not aware of this.

Click here for pamphlets related to divorce (civil).