Understanding Civil Marriage & Divorce
Before 1 March 1982, marriages carried out according to traditional or customary rites were considered valid and deemed registered. However, after 1 March 1982, all marriages must be registered in accordance to the Law Reform (Marriage and Divorce) Act 1976 (LRA), otherwise they are not valid. Significant amendments to the LRA were passed and enforced with effect from 15 December 2018.
Requirements for Marriage
- The man and woman must be at least 18 years old;
- Males and females who are above 18 but below 21 years of age must obtain consent from their parents; and
Females who are above 16 years but below 18 years must get a special licence from the Chief Minister.
All marriages taking place after 1 March 1982 must be monogamous until one of the parties dies or the marriage is otherwise dissolved. Both parties must be unmarried at the time of a (new) marriage. Marrying another person during the lifetime of a husband or wife (commonly known as bigamy) is an offence under Section 494 of the Penal Code and is punishable by imprisonment for up to 7 years and liable to a fine. The subsequent marriage will also be deemed void.
Marriages between family members including grandparents, parents, children, grandchildren and siblings, etc. are not allowed.
A marriage can be solemnised in 3 different ways:
- Solemnisation of marriage at the Registrar’s Office;
- Solemnisation of marriage under special licence from Chief Minister; and
- Solemnisation of marriage through religious ceremony, custom or usage.
Every marriage must be solemnised in the presence of at least 2 witnesses and only where the Registrar is satisfied that both parties freely consent to the marriage.
Solemnisation of marriage at the Registrar’s Office
- Both the parties should fill in a form for a notice of marriage to the Registrar of Marriages of the marriage district where they live.
- The Registrar will publish the notice by posting a copy on the notice board of the Registry, until he/she grants the certificate of marriage.
- The parties must make a date for the Registrar to solemnise the marriage at his/her office within 6 months of the date of the notice. If the marriage does not take place within this period, the notice and all subsequent proceedings become invalid and a fresh notice has to be given. The parties will be legally married after the solemnisation by the Registrar.
Solemnisation of marriage under special licence from Chief Minister
A special licence from the Chief Minister is required when:
- the prospective wife is between the age of 16 and 18 years old;
- the parties want to dispense with giving of notice and the issue of a marriage certificate;
- the Chief Minister is satisfied that it is more convenient for a civil marriage to be solemnised in some place other than the office of a Registrar.
A marriage authorised by a special licence from the Chief Minister must be solemnised within a month from the date of the licence, failing which the licence becomes invalid.
Solemnisation of marriage through religious ceremony, custom or usage
- Any person appointed as Assistant Registrar of Marriages may solemnise any marriage in accordance with the custom in which the parties to the marriage or either of them practise.
- The person may be a clergyman, minister, or priest of any church or temple who has been appointed as the Assistant Registrar of Marriages to which the church or temple belongs.
- Before the marriage is solemnised, a prescribed statutory declaration stating that the parties have complied with all requirements and that there are no legal impediments to the marriage must be delivered to the Assistant Registrar of Marriages.
Objection Against a Marriage
An objection or caveat against a marriage is a legal notice filed with a court to prevent a marriage proceeding until the opposition can be heard. A caveat acts as a warning to both parties to the marriage that the intended marriage is not complying with the requirements of the Legal Reform Act 1976. Any person may lodge a caveat in the prescribed form costing RM20 with the Registrar of Marriages. If there is a caveat entered, the Registrar will not issue the marriage certificate. The Registrar will make enquiries of both parties on the objections, and then decide whether to issue the marriage certificate.
Marriage Abroad & Foreign Marriages
Solemnisation of marriages abroad in Malaysian Embassies
A marriage may be solemnised by an appointed Registrar at the Malaysian Embassy, High Commission, or Consulate in the country abroad under these conditions:
- That one or both of the parties is a Malaysian citizen;
- That each party has the capacity to marry according to the Legal Reform Act 1976;
- Where either party is not domiciled in Malaysia, the proposed marriage, if solemnised, will be regarded as valid in the country where such party is domiciled; and
- That notice has been given within the specified time period and published both at the office of the Registrar in the Embassy, High Commission, or Consulate where the marriage is to be solemnised and at the Registry of the marriage district in Malaysia where each party was last ordinarily resident, and no caveat or notice of objection has been received.
Registration and Procedure of Foreign Marriages
Any person who is a citizen a of Malaysia who is married abroad must:
- register the marriage within 6 months after the date of marriage at the nearest Registrar abroad OR before any Registrar in Malaysia;
- The person must: produce the marriage certificate to the Registrar; and fill in the prescribed form with the declaration in it.
- The Registrar may dispense with the appearance of one of the parties to the marriage if he/she is satisfied that there is good and sufficient reason for such party’s absence.
Understanding Civil Divorce for Non-Muslims
The Legal Reform Act (LRA) will apply in divorces where:
(a) one party converts to Islam after the filing of the petition or after the pronouncement of a decree; or
(b) the divorce is applied for on the grounds that one party has converted to Islam. In such circumstances, any decrees or orders made by the civil court shall be valid against the spouse who has converted to Islam.
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
- Your marriage must be registered or recognised by the present law.
- Both parties must be married for at least two years (except where the divorce is sought because one party has converted to Islam); and
- 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 to the 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:
– your spouse has committed adultery and you find it intolerable to live with him/her.
– your spouse has behaved in such a way that you cannot reasonably 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).
– your spouse has deserted you for a continuous period of 2 years before you filed the divorce petition.
– 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 custody or access to your children.
– Maintenance For Yourself and/or Your Children.
– Your Share of Matrimonial Assets.
– Divorce on Ground of Conversion to Islam
Where one party to a marriage has converted to Islam, either or both parties may petition for a divorce under the LRA, and the civil court can make orders for maintenance, custody etc accordingly. The minimum two-year marriage requirement does not apply to petitions for divorce where one party has converted to Islam.
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 in Penang.
Contested Petition: On average it takes a minimum of one year, and may cost a minimum of RM5,000 in Penang. It could even go up to RM50,000 or higher 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 Jabatan Bantuan Guaman for free legal aid.
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.
Your marriage is deemed void if it falls under the following circumstances:
- 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.
- 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. The parties are within prohibited degrees of (close family) relationship unless Chief Minister grants a special license.
- Parties are not respectively male and female.
Your marriage will be voidable if it falls under the following circumstances
- The marriage has not been consummated due to the incapacity of either party to consummate it;
- The marriage has not been consummated due to the wilful refusal of the respondent spouse to consummate it;
- Either party to the marriage did not validly consent to it, whether because of duress, mistake, unsoundness of mind or otherwise;
- 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;
- At the time of the marriage, the respondent spouse was suffering from a communicable venereal disease and the petitioner was not aware of this.
Check out useful resources you can use related to divorce.