Common Queries About Divorce in Malaysia
1. Must the couple live separately for two years before filing a divorce?
It is not mandatory for a couple to live separately for 2 years before they can file for divorce. Separation for two years is only one of the reasons to file a divorce in a single petition (contested divorce).
There is also a misconception that couples will be “automatically divorced” if they have lived separately for more than 2 years. There is no such thing as an “automatic divorce,” the parties will still have to apply for it.
There is another misconception is that an application for divorce cannot be made within 2 years of a marriage. There are exceptions to this where the parties may opt for annulment of the marriage if they are eligible for such annulment.
2. If I was married overseas, must I go to back to the country where I got married to file a divorce petition?
Both parties must be domiciled in Malaysia to file for divorce in Malaysia. However, in certain cases, a Malaysian wife has additional rights to file for divorce in Malaysia even if her husband is not domiciled in Malaysia. A foreigner husband does not have such right.
Alternatively, if you are married overseas and get a divorce order from the foreign country, the foreign divorce certificate can be recognised in Malaysia by filing a petition in court to recognise the divorce certificate.
3. Is divorce the only “way out” during a marriage breakdown?
No, divorce is not the only solution when a marriage is on the rocks. You may instead apply for a judicial separation when you feel that your marriage has not irreparably broken down, or when you have strong religious beliefs against divorce. A judicial separation includes similar provisions to a divorce, including a court direction as to which spouse remains in the matrimonial home, child care and custody, division of assets, financial relief and others.
Under judicial separation, you are not legally divorced, just living separately. However, if after the separation both parties reconcile and wish to live together again, an application can be made to Court to set aside the decree of judicial separation, and you are back to your marital status again.
4. What are the acceptable reasons to get a divorce?
For a joint petition (uncontested divorce), both parties must voluntarily agree that their marriage should be dissolved, and the reason could be as simple as they just cannot live with each other due to incompatible personalities. The Court will allow the divorce as long as it is satisfied that both parties have given the consent freely, and that proper division of assets has been made for the wife and children.
For a single petition (contested divorce), the Court will take into account reasons such as whether one party has committed adultery, whether the husband has deserted the wife (or vice versa), whether the parties have been living separately for more than 2 years, and whether there is intolerable behaviour from one party. In just and reasonable situations, the Court will grant a decree of divorce after considering all the relevant facts and circumstances.
