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PROCEDURES OF DIVORCE PETITION IN MALAYSIA (5): Custody of Children

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

PROCEDURES OF DIVORCE PETITION IN MALAYSIA (5): Custody  of Children

In determining the custodial rights of a child below 18 years old in a divorce petition, the judge based on a number of presumption of law. The presumption is that Children below seven (7) years old are presumed to be better off with their mother, unless she is proven to be unfit. The older children’s wishes may be considered if the court feels they are mature enough to understand the implications of their decision.

When looking into the well- being of the children, the Court may consider:

1.         Children’s preference to stay with either parent (if they are above seven years old);

2.         Maintaining status quo of children, to avoid disruption of the children’s  daily routine;

3.         The Welfare Report, if applicable;

4.         The proximity and closeness of the children to their extended family members;

5.         Religion.

If the wife is granted custodial right,  reasonable access to children shall be given to the husband, and vice versa. Alternatively  husband and wife may opt to make fixed arrangements or have joint custody.

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To learn how our legal team can help you with your complex issue, please send us an e-mail today.

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

PROCEDURES OF DIVORCE PETITION IN MALAYSIA (4): Maintenance for Wife and Children

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

PROCEDURES OF DIVORCE PETITION IN MALAYSIA (4): Maintenance for Wife and Children

Among the issues to be sorted out in the divorce petition, the maintenance of wife and children after the divorce takes the centre stage in the negotiation process. This article aims to set out the considerations for judge in delivering judgment in relation to issue of maintenance.

Maintenance for Wife

(a)    In deciding the amount of maintenance for wife, the Court will consider the future and present income, property resources, and earning capacity of both parties. The financial needs and degree of responsibility which the Court apportions to each party for the breakdown of marriage will be the deciding factors for the maintenance;

(b)   Standard of living enjoyed by the wife before the divorce;

An order for maintenance for wife  shall cease to have effect if the wife remarries or lives in adultery with any other person.

Maintenance for Children

(a)             Financial needs of the children;

(b)            Standard of living enjoyed by the family before the breakdown of the marriage;

(c)             Income, earning capacity, property, and other financial resources of the parent;

(d)            Manner in which he/she was being educated and trained.

An order for maintenance for children expires when the child attains eighteen (18) years of age, unless otherwise agreed between the petitioners.

Talk to a Lawyer Today
To learn how our legal team can help you with your complex issue, please send us an e-mail today.

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

PROCEDURES OF DIVORCE PETITION IN MALAYSIA (3): Grounds of Divorce

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

PROCEDURES OF DIVORCE PETITION IN MALAYSIA (3): Grounds of Divorce

Irretrievable breakdown of a marriage constitutes ground for divorce. In a proper defense, acceptable differences enable the defendant to have the ability to arrange grounds for divorce. Some examples for grounds for divorce are:

  • Intolerable Behaviour

The behavior of the spouse is intolerable that the petitioner cannot reasonably be expected to remain in marital relation with him or her.

  • Adultery

This requires proof beyond reasonable doubt that adultery has actually took place. It is advisable for the petitioner to seek for professional advice in collection the evidence of adultery..

  • Separation

The spouse had been separated for a continuous period of at least two years before the filing of the petition.

  • Desertion

The spouse had deserted for a continuous period of at least two years before the filing of the petition.

Talk to a Lawyer Today
To learn how our legal team can help you with your complex issue, please send us an e-mail today.

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

PROCEDURES OF DIVORCE PETITION IN MALAYSIA (2): Application for Referral to Marriage Tribunal

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

PROCEDURES OF DIVORCE PETITION IN MALAYSIA (2): Application for Referral to Marriage Tribunal

The pre- requisite for filing of single divorce petition is to obtained a certificate issued by Marriage Tribunal to prove the attempt to reconcile the marriage.

GENERAL INFORMATION

This application is intended to refer the matrimonial difficulties of non-Muslims to the marriage tribunal for reconciliation.

APPLICATION CONDITION

The applicant is required to be present to submit the application for marriage tribunal at the NRD office for the area in which the couple last resided together.

REQUIRED DOCUMENTS

1.         Form JPN.KC14 that is completed.

2.         Applicant’s MyKad.

3.         ORIGINAL passport and photocopy of pages of personal details and latest arrival date in Malaysia for non-citizen.

4.         ORIGINAL and photocopy of Marriage Certificate.

PAYMENT

1.         RM2.00 for application fee.

2.         RM20.00 if tribunal certificate JPN.KC29 is issued.

CHECK LIST

  1. Form JPN.KC14 completed
  2. MyKad or  passport (photocopy of  page with  personal details)
  3. ORIGINAL Marriage Certificate
  4. Other supporting documents (if applicable)
  5. Payment:

RM2.00 for application fee

RM20.00 if tribunal certificate is issued

Talk to a Lawyer Today
To learn how our legal team can help you with your complex issue, please send us an e-mail today.

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

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.

Talk to a Lawyer Today
To learn how our legal team can help you with your complex issue, please send us an e-mail today.

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