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PROCEDURES OF DIVORCE PETITION IN MALAYSIA (1): General Knowledge

Written by L Y Lu & Co. | June 21, 2013

PROCEDURES OF DIVORCE PETITION IN MALAYSIA (1): General Knowledge

A divorce starts with a divorce petition. The petition is written by any one or both spouse (the petitioner). The petition is then filed in a state court in where the marriage took place. The petition includes important information regarding the marriage. It names the husband, wife and any children and states if there is any separate property or community property, child custody, and child or spousal support.

The following are the conditions precedent to be fulfilled before filing of petition:-

a)      The marriage shall at least lasted for two (2) years, except in exceptional circumstances or hardship suffered by the petitioner[ refer to Law Reform (Marriage & Divorce) Act 1976, Section 50];

b)      If the petition is not filed by both husband and wife, then the petitioner shall before the filing of the petition, obtained a certificate of completion of attempt to reconcile the marriage issued by Marriage Tribunal.

There are two types of divorce petition:-

  1. A. Single Petition

Prior to the filing of the petition, the petitioner must initiate the process of attempt to reconcile the marriage by filing an application to Tribunal of Reconciliation of Marriage. After few attempts have been made by the tribunal to reconcile the marriage, usually by counseling sessions, and if the attempts failed then the petitioner may file the petition in court.

The petition (or the divorce papers) is drafted by one of the spouse and must be served on the other spouse. This phase of the process is called “service of process.” If both spouses agree to the divorce, the other spouse only needs to sign an acknowledgement of the receipt of service. However, if the other spouse refuses to sign or is difficult to locate, you can hire a professional process server to personally deliver the papers.

If the divorce is uncontested and the spouses can agree on the terms of the divorce, there is only a bit more paperwork to file. Basically, in a single divorce petition, the Court will decide the custodianship after taking all factors into consideration, including the welfare of the child, the wishes of the parents and the wishes of the child if the child is eligible to express an independent opinion.

Once the court enters the decree  as to the petition, the decree is temporary effective. However, the marriage is not formally dissolved and the spouses cannot remarry until the end of the cooling off period of three (3) months, whereby the divorce decree nisi will be made absolute. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required.

  1. B. Joint Petition

Joint petition is where both husband and wife reach consensus as to the terms and conditions of divorce, and they opt to file the petition jointly. A joint petition is easier to conduct and only one hearing is required to obtain the decree for divorce. The marriage will be formally dissolved and the spouses cannot remarry until the end of the cooling off period of three (3) months from the date of the decree, whereby the divorce decree nisi will be made absolute.

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Full list of articles on Divorce Proceeding in Malaysia:-

General Knowledge

Application for Referral to Marriage Tribunal

Grounds of Divorce

Maintenance of Wife and Children

Custody of Children

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