Marriage is a precious experience in our life and we would expect it to last forever. Like lots of couples, you and your partner enter into marriage, with the hopes of starting a new happy family. Few years later you have children and you start to invest in your properties. But what if one day you wake up and realize that your marriage is not working out anymore?
The number of divorces increased 12.0 per cent from 50,862 (2018) to 56,975 (2019) in Malaysia. You now thinking of getting a divorce, but because many parts of your life are now shared with your spouse, things can get pretty complicated especially coming to family assets, maintenance, and custody.
Here are 5 key points to note about divorce in Malaysia.
Note that the information provided in this article applies to civil marriages and it does not apply to Islamic marriages.
1. Divorce Process
Civil (Non-Islamic) marriages in Malaysia is governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). Divorce can be ‘petitioned’ to a family court by either one partner, or both partners in a marriage.
Only one divorce petition can be filed after 2 years of marriage (Section 50, LRA). This is to protect the sanctity of marriage and to encourage reconciliation between married couples. However, the law allows the courts to consider divorce petitions before the two-year limit if one of the partner is suffering from “exceptional circumstances or hardship”. .
There are two types of divorce petitions:
- Joint petition
- Where both partners want to divorce and both agrees on the terms of separation
- relatively straightforward because the couple is not required to prove that the marriage has been broken down.
- Single divorce petition
- Where only one of the partner wants to divorce and the other partner doesn’t, or vice versa
- a little more complicated because you must show that the marriage has “irretrievably broken down” based on one of four grounds:
- Adultery
- Unreasonable behaviour
- Desertion
- Separation
- both partners are required to attend marriage counselling in order to determine if divorce is the only solution.
The court will first grant a temporary declaration of divorce called “Decree Nisi” which allows the partners to cancel the divorce before it is final. After 3 months, the partners can make an application to make the decree absolute, after which it can be considered as “permanently divorced”.
2. Division of Property
- Under Section 76 of the LRA, when deciding how the
property should be divided, the court will consider the following
factors:
- How much work or money you contributed towards the acquiring of the property;
- Contribution you made to the welfare of the family by looking after the home or caring the family;
- Any debts owing by either party which were for the family’s benefit;
- The needs of any minor children (age below 18)
- When granting a decree of divorce, the court has the power to order the division of 3 kinds of assets:
- Matrimonial Property (Assets acquired during the marriage by joint efforts) – Example: The family home bought jointly by both partners
- Non-matrimonial Property (Assets acquired during the marriage by sole effort of a party) – Example: Stocks or shares in a company which you purchased by your own money
- Assets owed by one party before the marriage and it was largely improved during the marriage – Example: A house that you bought before marriage which was renovated after marriage and its value increases
There is actually no set rules or formula as to how the court will divide the assets. The court will try to reach a fair and just decision in each case after considering all the factors. However, there are some things we can expect:
If it is matrimonial property, the court is likely to lean towards an equal split. But if it is non-matrimonial property, the court may give a much smaller share to your ex-partner, or nothing at all.
3. Alimony
Section 77 of the LRA provides that the court may order a man to pay maintenance to his ex-wife during court proceedings and after the divorce. However, a woman may also be ordered to pay maintenance to her ex-husband ONLY if he is incapable of earning a livelihood by reason of mental/ physical injury or ill health.
In determining the amount of maintenance, the court will consider primarily the earning capacity and financial needs of you and your ex-partner. The court will look at the duration of marriage, age of wife, standard of living of the family, and financial support provided to the wife during the marriage.
For instance, if the wife was a home-maker during the marriage and would have difficulty seeking employment upon divorce, the court will generally make an order of maintenance in favour of the wife. When a wife is employed and has reasonable income, this does not mean that she is not entitled to any maintenance from her ex-husband. The court may grant a reduced amount of maintenance based on her other needs.
When deciding how much maintenance to award, the court will also look at how much you contributed towards the breakdown of your marriage. So, you may get a lower amount of maintenance if you had substantially caused the breakdown of your marriage. However, this does not mean that you will get maintenance which is more than necessary if you are an ‘innocent party’. The purpose of maintenance is not to enrich you but to allow you to carry on with your normal life.
The right to maintenance stops if the spouse is living in adultery or if he/ she remarries (section 82, LRA). The court has wide power to change the maintenance order from time to time upon proof of change of circumstances.
4. Children
The court will consider the wishes of the parents and the wishes of the child (if he/ she is able to express an independent opinion). However, the utmost important principle is the well-being of the child, not the parents. This is covered under section 88 of the LRA.
There are also some principles that the court will adopt when deciding child custody:
- The law presumes that it is better for a child below the age of 7 years to be with his or her mother. Having said so, a father can still get the custody of a young child if he can show that the mother is an unsuitable parent and it will damage the child’s welfare if he’s living with the mother.
- The court is reluctant to disrupt the life of a child by a change of custody. For example, if a mother has been taking good care of the child before and after separation, it is unlikely for the court to change the custody as this may cause unnecessary disturbance to the child.
- The conduct of the parties is relevant only when the welfare of the child is affected. Generally, an extra marital affair does not automatically disqualify a parent from having custody, but a parent who for no good reason abandons the family may fail to get custody.
When making an order for custody, the court may provide the other parent the rights to visit the child. Frequently made orders in relation to access/ visitation are:
- Alternate weekends
- One half of school holidays
- Alternate public holidays
- Important festivals or celebrations (eg. Chinese New Year eve, Father’s Day, child’s birthday)
5. Child Maintenance
Under section 93 of the LRA, The court has the power to ask both father and mother to pay or contribute to the maintenance of the children, although the primary obligation to maintain a child belongs to the father. The mother has a secondary obligation, as the court may only ask her to contribute maintenance if she has enough financial means. The duty of parents is to provide the children with basic necessities such as accommodation, clothing, food and education.
Based on decided cases, the actual monetary amount is assessed based on:
- The financial means of the parents;
- The needs of the child; and
- The lifestyle of the parties during the marriage
Generally, the order for maintenance ends when the child reaches
the age of 18 (section 95, LRA). However, a court may order the
father to pay for the child’s tertiary education. In a recent case of Shantini
Pillay a/p Narayanasamy Pillay v Kanna Dasan a/l Narianasamy [2018] MLJU 1199,
the court ordered the father to pay for his child’s tertiary education but this
does not extent to the funding of postgraduate studies.
Divorce proceedings can be very stressful and it is always best to consult a lawyer. No two marriages are the same and each case has to be decided on its own facts. With lawyer’s advice, you will have a better understanding of your position and what options you have in resolving your issues.
Depending on each scenario, partners may also want to consider getting a judicial separation instead of a divorce. Judicial separation basically means that you and partner are legally separated, but the marriage is still subsisting.
