Civil marriages, i.e. marriages between non-Muslims in Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976. Under this Act, divorce petitions are divided into two types — single petition and joint petition.
Joint Petition for divorce is filed out of both parties’ free will, therefore, it is necessary for both the parties to mutually agree to the terms and conditions of the divorce. It is a much straightforward process as compared to a single petition.
In a joint petition, the divorce lawyer will submit the cause paper to the Court and the couple will have to attend a hearing on the set date. If the cause paper is in order and issues such as wife and child maintenance, asset division and custody of the children are agreed upon amicably, the court will grant a decree nisi. A decree nisi is a temporary declaration of divorce issued by the High Court allowing the couple to cancel the divorce within 3 months. After the 3 months, the couple can apply to make the decree absolute and officially terminate the marriage.
Single petition is filed when both the spouses are not able to agree to the divorce and the petition is filed by one one of the spouse. Single petition can be filed without the consent of one party, but bear in mind that the process is going to be more complicated, expensive and time-consuming.
The party filing for single petition is liable to prove that the marriage has “irretrievably broken down” based on at least one of these four grounds:
- The other party has committed adultery
- The other party has demonstrated unreasonable behaviour
- The other party has deserted the petitioner for at least two years before the single petition is filed
- Both parties have lived separately for a minimum two years period before the single petition is filed.
For filing of single petition, the couple is required to initiate reconciliation and attend counselling sessions to determine if divorce is the only solution. If the couple decides to proceed with the divorce even after the reconciliation sessions, the Tribunal of Reconciliation of Marriage will formally issue a certificate, allowing the couple to file for their divorce petition.
For couples who feel that divorce is their final avenue, it is important to engage top divorce lawyers in Malaysia to ensure that their divorce proceeding goes on smoothly, especially if the divorce involves children and assets. Dissolution of a marriage is a very delicate process that needs to be handled with empathy and a top divorce lawyer usually have the expertise to make the process as uneventful as possible.