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The Law on Divorce and Frequently Asked Questions

 

Parties are often confused as to their legal rights and obligations in a matrimonial proceeding. Usually, the parties are consumed with emotions and there are many factors that can influence an outcome.

 

 


Frequently Asked Questions (FAQ)

 


1. I have been married for less than two (2) years. Can I seek a divorce?

 

Section 50 of the Law Reform (Marriage & Divorce) Act 1976 prohibits parties from presenting a divorce petition within 2 years from the date of marriage. There is an exception to this rule, the judge can accept a divorce petition if there are ‘exceptional circumstances or hardship suffered by the petitioner’.  

 

In the case of Kiranjit Kaur a/p Kalwant Singh v Chandok Narinderpal Singh [2010] 3 CLJ 724 the court held that the conduct of the husband caused humiliation and untold embarrassment to the wife and that amounted to ‘exceptional circumstances’.


2. What is an annulment of marriage?

 

An annulment of marriage is where the court declares that the parties are never married. Since marriage is a contract, the court will declare the contract null and void. There are specific grounds for annulment and these grounds can be found in Section 69 of the Law Reform (Marriage & Divorce) Act 1976. 

 

  • Either party was already married to someone else at the time of marriage.

  • The parties are of the same gender. Malaysia does not recognize same-sex marriage. 

  • The male individual is below the age of 18 and does not have the special license granted by the Chief Minister. 

  • The female individual is below the age of 18 but above the age of 16 and did not have the special license granted by the Chief Minister. 

  • The parties are within prohibited degrees of relationship. This includes marrying uncles, aunts, nieces, or nephews. 

 

A person who successfully petitioned for an annulment of marriage will not be regarded as a divorcee. 

 

3. How does one get a divorce from the courts?

 

The parties can either file for a joint petition or a single petition. In a joint petition, the parties agree to mutually dissolve the marriage. The parties have to agree on the terms of the divorce. The terms include: -

 

i) Custodial rights & visitation rights

ii) Alimony or palimony

iii) Distribution and/or arrangement of the jointly acquired asset(s)

iv) Arrangement as to the matrimonial house

 

If the parties cannot agree on a divorce or the terms of the divorce, one of the parties that is desirous of seeking a divorce will file a single petition. In a single petition, under Section 53(1) of the Law Reform (Marriage & Divorce) Act 1976, the party seeking divorce must prove that the marriage has ‘irretrievably broken down’. 

 

4. How does the court determine if a marriage has ‘irretrievably broken down’?

 

    The court will consider the following grounds: -

 

  • The respondent has committed adultery, and the petitioner finds it intolerable to continue to live with the respondent; 

  • The respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue to live with the respondent;

  • The respondent has deserted the petitioner for at least two years, continuously prior to presenting the petition for divorce; and

  • Both parties have lived apart for at least two years, continuously, immediately prior to petitioning for divorce. 

 

...to be continued

 

Author: Thomas Kwan

 

Disclaimer: This article does not establish any solicitor-client relationship, thus do not rely on the contents herein in making any decision pertaining to the subject matter. You are advised to seek independent and professional engagement with a solicitor of your choice to ensure that your interests are best protected. The contents herein are meant for general dissemination and for educational purposes.

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