1 In Malaysia, divorce of non-Muslim is governed by the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976). LRA 1976 states that a Malaysian High Court can only grant a decree nisi or decree of judicial separation if the marriage is registered or deemed to be registered under the LRA 1976, or the marriage is contracted under a law that the marriage is monogamous. The LRA 1976 divorce proceedings can only be exercised if at the time of divorce the parties to the marriage are domicile in Malaysia. The filing of petition of divorce is normally be filed in the High Court.
1.1 There are two types of Divorce Petitions in Malaysia, mutual consent (joint petition) and a divorce petitioned by one party (single petition).
2 Section 52 is divorce by mutual consent, that the husband and wife mutually agree that their marriage should be dissolved.
2.1 Divorce Petition
The first step of divorce in a joint petition where the parties mutually agree to divorce is the filing of divorce petition. Form 3 of the Rules 1980 joint petition for divorce. The joint petition for divorce shall be signed by the solicitors of both parties.
2.2 Decree of Divorce
The court may make a decree of divorce if the court is satisfied that both parties freely consent to the divorce. The court will first grant a decree nisi to the parties that will be made absolute after three months if there are no objections.
3 In single petition, Section 53 of LRA 1976 provides that either party to the marriage may petition for divorce on the ground that the marriage has irretrievably broken down. Section 54 further provides some facts and circumstances where the court will consider the marriage be deemed to be irretrievably broken down.
3.1 Conciliatory body
The first step of divorce proceedings by way of a single petition in Malaysia is the reference of the matrimonial difficulty to conciliatory body pursuant to section 106 of the LRA 1976. If the conciliatory body cannot resolve the matrimonial difficulty and to persuade them to resume their married life, the body shall issue a certificate to affirm this.
3.2 Petition of divorce
3.2.1 The second step is the filing of petition of divorce by the petitioner.
3.2.2 The next step is to serve the petition personally or by post to the respondent. Then an acknowledgment in Form 6 of the Rules 1980 has to be signed by the party to be served or by the solicitor on his behalf. If the party to be served intends to defend, he shall give a statement with the acknowledgment of service of petition signed by the party or the solicitor on his behalf stating his intention to defend.
3.2.3 If the respondent of the petition of divorce wishes to defend the petition or to dispute the facts he shall give notice of intention to defend within 8 days. Thereafter, the respondent has 21 days to file an answer to the petition. The petitioner may file a reply within 14 days after he has received a copy of the answer.
3.2.4 The fourth step for a single petition is the petitioner or any party who is defending seeking for directions of the Registrar for trial. If the registrar is satisfied that a copy of the petition and any subsequent pleadings have been duly served or there is no notice of intention to defend given by the party entitled to give it after the time has expired. The registrar shall also determine the place for trial having regard to all the circumstances and information available to him.
3.2.5 During the trial, the court has the power to give decision regarding to the custody of children, maintenance of spouses and maintenance of the children. The respondent of the divorce petition may be heard on question of custody or access to any children of the family. Respondent can also be heard for any question of ancillary reliefs and costs. The respondent may also file in court a written statement of his views on the present and proposed arrangements for the children.
3.2.6 Next, the court may grant a decree nisi to the parties after the trial. Section 61(1) of the LRA 1976 stated that the decree of divorce shall first be decree nisi which will not be made absolute before expiration of three months after it is granted.
3.2.7 The sixth step is the decree nisi to be made absolute by filing a notice in Form 8 of the Rules. In the event that after the pronouncement of a decree nisi but before it made absolute, reconciliation occurs between the spouses, then either party can apply for an order to rescind the decree by consent.
3.2.8 The seventh step of a divorce proceeding is the grant of a Certificate of Making Decree Nisi Absolute by Divorce as in the Form 9 of the Rules 1980 to acknowledge the divorce between the parties.
3.2.9 After the Certificate as in Form 9 of the Rules 1980 is granted, a divorce for a non-Muslim couple in Malaysia is complete.
HIU JING YIN, JENNIFER
THE NATIONAL UNIVERSITY OF MALAYSIA,
UNIVERSITI KEBANGSAAN MALAYSIA