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An Introduction to Divorce Law in Malaysia

An Introduction to Divorce Law in Malaysia

Divorce

In this guide, we explain the key elements of divorce law in Malaysia. Divorce, otherwise known as ‘dissolution of marriage’ is the end of the marriage relationship between two marriage partners (‘spouses’). In this guide, we look at:

The Dual Legal Systems and Divorce Law
Divorce by Mutual Consent
Divorce without Mutual Consent
Nullity
Care of Children and Custody
Division of Property and Financial Support
Pre-Nuptial Agreements, and
Foreign Marriages and Other Relationships.

This Guide is intended as general information only. For advice on your particular situation, you must consult a lawyer.

Dual Legal Systems and Divorce

There are two different systems of law for marriage, divorce and related matters in Malaysia. For non-Muslims, the civil law, the Law Reform (Marriage and Divorce) Act 1976 (commonly known as the ‘LRA), applies across the country and is enforced through the civil law courts. For Muslims, Islamic Sharia or ‘Syariah’ law (as it is known in Malay), is applied and enforced by special courts. There is no national Syariah law that applies across Malaysia, it is determined by state or federal territory law.

In this guide, our focus is on the civil law as it applies to non-Muslims.

Complications can arise where one spouse converts to Islam. The LRA makes it clear, however, that the civil court has jurisdiction over civil marriages and all matters related to them. This means that decrees or orders are valid against converts to Islam.

Divorce by Mutual Consent

This occurs when both spouses jointly file a petition to the court agreeing to divorce each other (see section 52 of the LRA). In order to file this petition, the couple must have been married for at least two years at the time of filing, unless otherwise approved by the court.

This petition should be presented to the court in conjunction with agreements on custody and care for children, division of property and financial support.

Divorce without Mutual Consent

This type of divorce occurs via a ‘unilateral petition’, a petition from one marriage partner (‘the petitioner’), to the other (‘the respondent’), without the consent of the other spouse. All such divorces require that the marriage has ‘irretrievably broken down’ (section 53(1) of the LRA). In determining whether a marriage has ‘irretrievably broken down’ the court, will consider the following four grounds:

The respondent has committed adultery, and the petitioner finds it intolerable to continue to live with the respondent;
The respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue living with the respondent;
The respondent has deserted the petitioner for at least two years, continuously, prior to presenting the petition for divorce;
Both parties have lived apart for at least two years, continuously, immediately prior to petitioning for divorce.

A unilateral petition must not be presented, under the rules of the court, unless the couple has had recourse to a person or body that attempts to reconcile both marriage partners (section 55, LRA). That body must certify that they have failed to reconcile the marriage before the petition can be presented. There are certain exceptions to this requirement, including if the respondent wilfully refuses to attend meetings with that reconciliation body.

Nullity

A Nullity, sometimes referred to as an ‘annulment’, occurs when the marriage is ‘void’ or ‘voidable’. It is not a divorce. A divorce occurs where an existing, genuine, marriage breaks down for some reason subsequent to the marriage. By contrast, a nullity decree can only be made where there is something wrong or faulty with the marriage from the very beginning.

A marriage is ‘void’, where no formality is required in order to terminate it. By contrast, a ‘voidable marriage’ is a valid marriage, but, one that can be declared to be void by the courts on certain grounds:

A marriage is void, under section 69 of the LRA, if:

at the time of marriage, one of the parties was already lawfully married to a living partner;
the male is under 18, or the female is above 16 but under 18, and marriage has occurred without a special licence from the Chief Minister;
the parties had a ‘prohibited relationship’, and the Chief Minister has not granted a special licence;
the parties are not, respectively, male and female.

The marriage is voidable, under section 70 of the LRA, if:

the marriage was not consummated, where either party was incapable of doing so;
the marriage was not consummated, due to the respondent wilfully refusing to consummate it;
either party did not validly consent, for example due to duress, mistake or unsoundness of mind or some other reason;
either party, while capable of consent, was mentally disordered under the meaning of the Mental Disorders Ordinance 1952, so as to be unfit for marriage;
the respondent had a venerable disease in a communicable form at the time of marriage;
the respondent was pregnant to another person at the time of marriage.

Note, however, that under section 71(1) of the LRA, the court will refuse to issue a decree of nullity where:

the petitioner, with knowledge that it was open to him or her to have the marriage voided, so conducted him or her-self in relation to the respondent, so as to lead the respondent reasonably to believe that he or she would not seek to do so; and
it would be unjust to the respondent to grant the decree.

Care of Children and Custody

On marriage breakdown, a parent, relative or another suitable person can apply for custody of the child. Under section 89(1) of the LRA, an award of custody entitles a person to make all decisions relating to the upbringing of a child, as they see fit.

The court’s focus in making custody decisions is the welfare of the child. Subject to that paramount consideration, the court will consider the wishes of the parents and the wishes of the child (see LRA, section 88(2)). The court does, however, make a presumption (which can be rebutted, with evidence, in court), that it is for the good of children under the age of 7 to be with the mother (see section 88(3)).

In making an order of custody, the court will, under section 89(2), consider conditions with respect to:

the child’s manner of education, upbringing or the religion in which they will be brought up;
where the child will reside, and;
temporary care under someone who has not been awarded custody.

Note that under the Guardianship of Infants Act 1961, custody can be given to a Guardian in various cases, such as where the child has been made an orphan (see section 8 of that Act).

Division of Property and Financial Support

On divorce, rules apply as to how property is to be divided, ongoing support that needs to be provided to one spouse (‘maintenance’), and child support. Where divorce is by mutual consent, the parties should submit in their petition how property division and ongoing financial support will work.

The court has an overarching power under Part VII of the LRA to make orders relating to the division of property (“matrimonial assets”). Recent amendments to section 76 of the LRA mean that property is now, generally, pooled, whether acquired by a joint effort of the partners or via the efforts of an individual spouse. The Court will consider assets acquired during the marriage (and assets which have been improved upon during the marriage), and will take into account:

contributions made by each to the acquisition of assets;
wider contributions of each spouse;
debts that are owing and which were contracted for the joint benefit of the spouses;
the needs of minor children, and;
the length of the marriage.

Under section 76, the court will take into account these factors and make an overall judgement, but will “incline towards equality of division”.

The court can also make determinations with respect to ongoing financial support for one partner (section 77) and child support payments.

Pre-Nuptial Agreements

In many countries it is common for spouses to be able to ‘opt-out’ of property distribution rules and other financial obligations, via a ‘pre-nuptial agreement’ between both spouses signed prior to the marriage.

There is no explicit recognition of these agreements in the LRA, however, those agreements are permitted as long as they are not contrary to the LRA. Such an agreement would be subject to the overall discretion of the court to make a determination, but could be taken into account by the courts.

Foreign Marriages and Other Relationships

Marriages of citizens and those domiciled in Malaysia, but performed in foreign jurisdictions, may be recognised under Malaysian law via section 31 of the LRA.

Recognition of marriages of non-Muslims who are neither citizens nor domiciled in Malaysia, may also be legally recognised. For more information on this process see here.

In some other countries, it is common for non-marriage relationships, often called ‘civil partnerships’ or ‘civil unions’, to be legally registered. There is no equivalent concept in Malaysian law and such relationships registered overseas are not recognised under Malaysian law.