Frequently Asked Questions (Divorce)

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Filing a Petition for Divorce

How do I go about filing a petition for divorce?
What do I do if my spouse does not agree to the divorce or to some of the terms?
Currently my husband and I are staying in Penang, but I registered my marriage in Kuala Lumpur. Do I need to file the divorce in Kuala Lumpur?
Do I have to be separated from my husband for at least 2 years before I can file a petition for divorce?
If I have been separated from my husband for 2 years or more will we be considered automatically divorced?
How much does it cost to file for divorce?
Can I claim all these expenses from my husband?
What happens after my petition for divorce is filed in court?
My husband keeps telling me I won’t be able to get my divorce or any of my claims as he wouldn’t turn up in court even if he is served the divorce papers. What should I do?
What happens if my husband does turn up and resists the petition or any of my claims. Will my case take a long time to finish?
After 3 years of marriage, my husband and I decided to end our marriage. However, my husband does not want to initiate it and I do not have the money to file for divorce. What can I do?
I have already filed for divorce but my husband has refused to sign the divorce and move out of the house which belongs to me. I have lodged a police report about domestic violence but the police said that my husband still has the right to live in the house. What can I do?
How do I file for divorce if my husband has left Malaysia and I am not able to contact him?
What is judicial separation?
What is a deed of separation?
How can I end my marriage if I have registered my marriage but have not lived with my husband because we haven’t gone through the customary or religious marriage ceremony?
Can I apply for a decree of nullity even though we have been married for less than 2 years?

Custody of Children

How does the Court determine who gets custody of my children?
Will my chances of getting custody be poor if I am not working and do not have the means to pay for their expenses?
Will I lose my right to custody of the children if I file for divorce before my husband does?
Can I get custody of my children if they are under my husband’s care now and I have not seen them for some time?
Am I automatically entitled to custody of my children if they are seven years’ old or less?
Do judges interview children and ask them whom they prefer to live with after their parents’ divorce?
Can a psychologist’s report be taken into account when applying for custody?
If I do not get custody of my children will I at least be allowed to see them?
Can I ask the court to deny my husband access to the children if I get custody of my children?
If my ex-husband refuses to pay maintenance or defaults in payment, can I stop him from visiting the children?
Can grandparents apply for custody of the children if the children’s mother passed away and the father is unable to properly care for them?
Is it possible for a foreign wife to get custody of her children during the divorce?
I did not register my marriage, do I need to get a court order to gain custody of my children?

Maintenance

What can I do if my husband refuses to pay maintenance?
Can I claim maintenance for myself and my children?
Where do I file my claim for maintenance? Does it have to be in the High Court?
How will the amount be decided by the court?
Do I have to file for divorce first to get maintenance?
What can I do if my husband fails to comply with the order of the court?
Will the court automatically order my husband to be imprisoned if he fails to show cause?
What can I do to make sure my husband does not default in payment of maintenance ordered by the court?
What is an attachment of earnings order?
Will I lose my right to maintenance if I file for divorce before my husband did?
Will I be able to claim maintenance if I am working?
Can I apply for higher maintenance after sometime if it is no longer enough to cover my or my children’s expenses?
Can maintenance be deducted from my husband’s pension?
Can I claim maintenance from my husband’s EPF?

Property

Can my husband claim property that belongs to me?
If I paid for the house and my husband did not contribute any money for the house, can he claim a share in the house?
Can I claim a share of property or other assets held by my husband if all of it is solely in my husband’s name?
If the house is under joint names, can either party lodge a caveat on the property?
If the house is under my husband’s name, can I lodge a caveat on the property?
If my husband has converted to Islam, can I file for divorce?
If my husband has converted to Islam, will my children be automatically converted?
Is my marriage considered automatically dissolved if my husband converts to Islam?

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Filing a Petition for Divorce

How do I go about filing a petition for divorce?
A: You have to first see if your spouse will agree to file a joint petition for divorce. If both of you can agree on all issues, ie, custody of children, access to the children, maintenance for spouse and children, and division of your joint assets, you can file a joint petition. You cannot file a joint petition if some but not all the terms are agreed to.

What do I do if my spouse does not agree to the divorce or to some of the terms?
A: You can file for divorce even if he does not agree to the divorce but you must first refer your problems to a marriage tribunal in the district you last lived together. The tribunal will call both of you a few times and see if there is a possibility of reconciliation. If there is none, then the tribunal will issue you a certificate to say it can’t reconcile both of you and you can use it to file the petition.

Currently my husband and I are staying in Penang, but I registered my marriage in Kuala Lumpur. Do I need to file the divorce in Kuala Lumpur?
A: No. You can file your divorce in Penang or in the High Court nearest to you if you and your husband are living in different states or towns.

Do I have to be separated from my husband for at least 2 years before I can file a petition for divorce?
A: No, you don’t. Two years’ separation is only necessary if you are using separation or desertion as a ground for divorce. There are other grounds that may be applicable in your case like unreasonable behaviour of your spouse (domestic violence, mental or emotional cruelty, abusive behaviour, persistent failure to maintain, neglect, infidelity or a combination of these) or adultery. If your husband has committed adultery you can bring in the mistress as a party and claim damages from her but there must be actual proof of adultery. If you cannot prove adultery you can use his relationship with another woman to show your husband’s unreasonable behaviour.

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If I have been separated from my husband for 2 years or more will we be considered automatically divorced?
A: There is no such thing as an automatic divorce. All divorces can only be given by the High Court and even if you have been separated for 2 years you have to prove that the separation has caused a breakdown of marriage. The court can dismiss the petition if the court finds that there is no breakdown of marriage inspite of the separation.

How much does it cost to file for divorce?
A: The cost of divorce varies considerably depending on what your claims are and the value of your or the other party’s claims. In Penang, it may cost a minimum of RM3,000 to RM5,000 and will be a lot more if there is dispute on custody and access of children, maintenance and matrimonial property. If there are additional applications which become necessary in the course of the trial, e.g; taking an injunction against your husband because he is stalking or harassing you, you will have to pay much higher fees. A joint petition is much cheaper. You will also have to pay the court expenses for filing all your divorce papers and getting the orders from the court.

Can I claim all these expenses from my husband?
A: You can claim your costs of the petition but the court may not always allow your claim or full expense. Anyway, you have to advance all these payments first and not expect your lawyer to wait until your claims are allowed.

What happens after my petition for divorce is filed in court?
A: Your petition will have to be served on your husband. He will be given time to defend the case and to answer the allegations and claims you have made against him. Once all the necessary documents have been filed in court, the court will fix a hearing date. On the hearing date both sides will be given an opportunity to tell the court how the marriage broke down and prove their claims in court. The court will then decide if the divorce should be granted and what claims should be allowed.

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My husband keeps telling me I won’t be able to get my divorce or any of my claims as he wouldn’t turn up in court even if he is served the divorce papers. What should I do?
A: It is not true that you cannot get a divorce decree or any of your claims if your husband does not defend the case or turn up in court. So long as he has been duly served the divorce papers and has been informed of the hearing date, the court will proceed with the petition as an undefended matter and grant you the divorce and the orders you asked for if he does not turn up in court.

What happens if my husband does turn up and resists the petition or any of my claims? Will my case take a long time to finish?
A: Not necessarily. It depends on how both parties conduct their case and how busy the court is. Nowadays, with the fast track system being applied in courts, cases cannot be delayed too long and the courts have to complete the cases as soon as possible. So even contested divorce cases (i.e. cases where the other side does not agree to the divorce or any of the orders asked by the petitioner) are usually disposed of within a year.

After 3 years of marriage, my husband and I decided to end our marriage. However, my husband does not want to initiate it and I do not have the money to file for divorce. What can I do?
A: You can go to Jabatan Bantuan Guaman (JBG) or Legal Aid Centre (LAC) to file the case. JBG is a government-funded body that provides legal advice and help to the public. LAC is run by the Malaysian Bar Council in every states providing free and confidential legal advice, and subsidised legal services. Either JBG or LAC will asses your income and other properties owned by you before they take up the case for you.

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I have already filed for divorce but my husband has refused to sign the divorce and move out of the house which belongs to me. I have lodged a police report about domestic violence but the police said that my husband still has the right to live in the house. What can I do?
A: If you have already filed a single petition, your husband does not have to sign the petition. The court will decide if your petition should be granted. If he refuses to move out of your house, you can, in your petition, ask for a court order to order him to leave. If the court has already granted the order to evict your husband but he still refuses to leave, you can request a court bailiff to accompany you to evict him. A court bailiff is a court officer who enforces the court’s eviction order. If there is violence while the proceedings are on-going you can ask for an Interim Protection Order which includes an order to forbid him from entering or living in the house.

How do I file for divorce if my husband has left Malaysia and I am not able to contact him?
A: You can file for divorce on the grounds of desertion provided your husband has deserted you for more than two years. If you can prove to the court that you have no knowledge of his whereabouts you can be excused from serving the divorce papers on him or serve it by advertisement in the local newspapers.

What is judicial separation?
A: Judicial separation is different from divorce. Although the grounds like desertion, adultery and others are the same, it is different because you are still married to each other after the order is made. You just have the right to stay separately, get an order for maintenance, custody and division of matrimonial assets. If this order is made, the husband cannot inherit his wife’s property when she dies. But the wife can inherit the husband’s property should he die. These proceedings are meant to cater for people who cannot apply for divorce due to their personal or religious beliefs.

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What is a deed of separation?
A: A deed of separation is an agreement for separation signed by both parties. This deed sets out the terms of the separation, e.g. custody, access and maintenance. It is useful for cases in which parties cannot bear to live together but do not want to get a divorce and do not want to be harassed by the other party to return to the matrimonial home.

How can I end my marriage if I have registered my marriage but have not lived with my husband because we haven’t gone through the customary or religious marriage ceremony?
A: If you have not had sexual relations with your husband, you can apply for a decree of nullity on the grounds of his refusal to consummate the marriage if your agreement was that you won’t live together or consummate the marriage until after the religious ceremony.

Can I apply for a decree of nullity even though we have been married for less than 2 years?
A: Yes, you do not have to be married for 2 years before applying for a nullity decree which is a requirement for filing for divorce.

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Custody of Children

How does the Court determine who gets custody of my children?
The court will look at the welfare of the children and make an order which best serves their interests. The court will consider how much time, care and attention you and your husband have given the children so far and how you plan to take care of them if the order is given to you. It is always an advantage to have the children under your care at the time the application is made.

Will my chances of getting custody be poor if I am unemployed and unable to cover their expenses?
A: No, your husband has a legal duty to maintain the children and he can be ordered to pay you a sufficient sum to cover their expenses.

Will I lose my right to custody of the children if I file for divorce before my husband does?
A: No, the main consideration in a custody application is the welfare of the children, not who filed for divorce first.

Can I get custody of my children if they are under my husband’s care now and I have not seen them for some time?
A: You can, but you must be able to give good reasons for not having seen them so far (e.g. if you were prevented by your husband’s family from having access to them). The court’s main concern will be whether it will be better for the children’s well-being to remain under your husband’s care or be taken and put under your care and whether a change of custody will be good for them.

Am I automatically entitled to custody of my children if they are seven years’ old or less?
A: No, not always. Although the law favours the mother if the child is seven or less, the Court may still award custody to the father if it can be proven that you had neglected the children or been incompetent when you were still living together.

Do judges interview children and ask them whom they prefer to live with after their parents’ divorce?
A: This varies among judges. Usually they do not interview the children unless they are old enough to make a proper decision. The Court may not accept the child’s choice if there are indications that they were coached or influenced or forced to choose the parent with whom the child is living. Usually the court will look at the overall circumstances before making the order.back_to_top_button

Can a psychologist’s report be taken into account when applying for custody?
A: Yes a psychologist’s report can be used and is important in cases where there has been physical and/or sexual abuse.

If I do not get custody of my children will I at least be allowed to see them?
A: Yes, the court will usually make an order giving you access to the children on a regular basis and that may include having the opportunity to take them home to stay with you for weekends, school holidays etc. The court will consider your proposals for access and make an order that is best suited for the circumstances.

Can I ask the court to deny my husband access to the children if I get custody of my children?
A: The court may not grant your request unless you can show that it would be detrimental to the children’s welfare for your husband to have access to them. The court may, however, limit his access or order supervised access (i.e. access in your or someone else’s presence) if there are good reasons for making such an order.

If my ex-husband refuses to pay maintenance or defaults in payment, can I stop him from visiting the children?
A: No. You cannot stop your ex-husband from visiting the children if he refuses or fails to pay maintenance if there is an order giving him access. In such a case you have to ask the court to vary the order to stop access. If there is no order, you may be able to justify your refusal to give access due to his failure/refusal to pay maintenance.

Can grandparents apply for custody of the children if the children’s mother passed away and the father is unable to properly care for them?
A: Yes. However, the grandparents must be able to show that it is better for the children’s welfare that they, take care of the children in place of the children’s father.

Is it possible for a foreign wife to get custody of her children during the divorce?
A: Yes, however, the court will consider where the children will be living during, and after the divorce. The husband may be concerned about the wife taking the children out of the country to live and the court may impose an order that she cannot do so without the court’s or the husband’s permission. The children’s welfare is always the most important consideration.

I did not register my marriage, do I need to get a court order to gain custody of my children?
A: If you already have the children with you then you don’t have to but if the children are with their father then you have to get a custody order before you can take the children.

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Maintenance

What can I do if my husband refuses to pay maintenance?
A: If your husband has not been paying maintenance, you can file a complaint with the court. Your husband will be ordered to appear before the court to provide reasons for not paying maintenance. If he does not appear in court an order will be made in his absence. If he cannot provide good reasons, he will be ordered to pay maintenance.

Can I claim maintenance for myself and my children?
A: Yes, you can. Your husband cannot give excuses for not maintaining the children. Maintenance for you will depend on why you left the home, if you moved out of the house and he offers to maintain you if you come back to live with him. If you have good reasons for refusing to return to live with him the court will order him to pay you maintenance. You can claim maintenance even if you are living together and your husband has failed to maintain you.

Where do I file my claim for maintenance? Does it have to be in the High Court?
A: No, you don’t have to file for maintenance in the High Court if you do not intend to divorce your husband. You can file in the Magistrate’s Court.

How will the amount be decided by the court?
A: You will have to give the court proof of your husband’s income and of your income and expenses. If you cannot give sufficient proof the court may accept your husband’s claims of a lower income or higher expenses if he shows proof instead.

Do I have to file for divorce first to get maintenance?
A: No. You can make an application for maintenance to the court once your husband has failed to provide money for you and your children. You don’t have to file for divorce if you don’t want to. If you decide to file for divorce and the process takes time you can apply to the Magistrate’s Court first if there is an urgent need for the maintenance. If you can wait then you can save costs by putting in your application for maintenance together with your petition for divorce.

What can I do if my husband fails to comply with the order of the court?
A: If the order was given by the Magistrate’s Court you can apply to the court to issue a notice to show cause why he should not be imprisoned for failing to pay the maintenance as ordered. If the order was given by the High Court then you can file a Judgment Summons for your husband to show cause why he should not be imprisoned.

Will the court automatically order my husband to be imprisoned if he fails to show cause?
A: No, the court will usually give your husband an opportunity to explain why he has defaulted and give him time to pay up the arrears. If he fails again he may be sent to jail until he pays.

What can I do to make sure my husband does not default in payment of maintenance ordered by the court?
A: If your husband works for a company/employer for a monthly salary then apply for an attachment of earnings order at the same time you apply for maintenance so that the court can grant the order to attach your husband’s earnings together with the order for maintenance.back_to_top_button

What is an attachment of earnings order?
A: An attachment of earnings order helps ensure that you receive your maintenance every month. The order requires your husband’s employer to deduct your maintenance from your husband’s salary and send it to you. This order is effective for as long as he works for the same employer.

Will I lose my right to maintenance if I file for divorce before my husband did?
A: No, you will not. But the court will look at whether you had contributed to the breakdown of the marriage when deciding the amount.

Will I be able to claim maintenance if I am working?
A: Yes, but it depends on how much you and your husband earn and what both your expenses are. The court will weigh everything and decide if you should get maintenance, and how much.

Can I apply for higher maintenance after sometime if it is no longer enough to cover my or my children’s expenses?
A: Yes, but you must show how much your expenses have increased and whether he can afford the higher amount. He can also apply to reduce or stop the maintenance if he is no longer able to pay the amount ordered by the court e.g. if he has lost his job.

Will the process take long?
A: It depends on whether your request is contested by your husband. It may be possible to have your maintenance backdated after you have been granted the increased maintenance.

Can maintenance be deducted from my husband’s pension?
A: Yes, if you have an attachment of earnings order.

Can I claim maintenance from my husband’s EPF?
A: No, you cannot claim maintenance from your husband’s EPF but you can claim a share as part of the matrimonial assets The court will give you an order which can be registered with the EPF office. You may not get immediate payment, unless your husband is in the position to withdraw it.

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Property

Can my husband claim property that belongs to me?
A: Yes, if your husband can prove that it is a matrimonial asset (i.e. property bought during the marriage).

If I paid for the house and my husband did not contribute any money for the house, can he claim a share in the house?
A: Yes. Your husband may not have paid for the installment, but the court will consider other contributions such as maintenance, rent, electricity, water, other utilities or improvements made to the house. For such contributions he will not get an equal share but a smaller share.

Can I claim a share of property or other assets held by my husband if all of it is solely in my husband’s name?
A: Yes. You will have to show the court that it was acquired during the marriage and that you made direct or indirect contributions towards it. Direct contributions would be money you had given him to help pay, or which you paid, for the deposit, installments, renovations etc. Indirect contributions would be what you did like paying for other expenses so that he can pay for the house/save money, cooking, cleaning, looking after children etc. If you have made monetary contributions the court is more likely to order that you are given an equal or close to an equal share. If it is indirect contribution it will be much less, 10 – 30%. To be able to get a share you must prove to the court what are the assets (property, savings, shares, insurance, EPF) held by your husband as otherwise he may not disclose them fully even if he is ordered by the court to do so. You must also be able to prove your contributions.

If the house is under joint names, can either party lodge a caveat on the property?
A: Yes. A caveat means the house cannot be sold without the applicant’s knowledge. Either party can caveat the house if you can satisfy the registrar of the need to do so and that you have a right to claim a share of the other party. However, if the wife is a co-owner, the husband cannot sell the house without her signature. Therefore, there is no need for a caveat unless there is a fear that the husband may forge her signature.

If the house is under my husband’s name, can I lodge a caveat on the property?
A: Yes, you can. You have to prove that you are married and that you are entitled to claim a share.

If my husband has converted to Islam, can I file for divorce?
A: Yes, however you have to wait 3 months after your husband has converted to file for divorce. The 3-month period is to allow you a chance to convert to Islam as well.

If my husband has converted to Islam, will my children be automatically converted?
A: There is no automatic conversion but under Syariah law, your husband can convert them to Islam.

Is my marriage considered automatically dissolved if my husband converts to Islam?
A: No, it is not. The marriage is still valid and will only be considered dissolved if the High Court makes an order dissolving the marriage upon your application. The High Court can at the same time make an order making provisions for you and for the support, care and custody of your children.

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WCC Disclaimer: The above information is intended as a useful guide for women seeking a divorce. The Women’s Centre for Change accepts no liability for the content of this information, or for the consequences of any actions taken on the basis of the information provided. The user is solely responsible to act or not to act on the information given.