Marriage, Annulment & Divorce - Part Two

Part 2 - The Divorce (non Muslims)

In an earlier posting, we blogged about Laws on Marriages (for non-muslims) in Malaysia.

Today we wish to give a summary on Laws and Procedures related to Divorce between a non-muslim couple.

First, you may file a "Joint Petition Divorce", wherein both husband and wife wish to bring the marriage to an end. This can be filed after 2 years from the date the couple got married.

Secondly, if only one party wish to divorce and the other don't want to, then the party who wish to divorce would have to file in a Petition to bring the marriage to an end. The other party may challenge it. This is usually referred to as a "Contested Divorce".

For Contested Divorce, before the Petition can be filed in Court; both parties have to attend counseling by a Conciliatory Body, a body within the Malaysian Registrar of Marriage (ROM). This is to ascertain if the Marriage has irretrievably broken down. If the Conciliatory Body finds that the marriage has indeed irretrievable broken down, then a certificate will be issued accordingly. The party who wish to proceed with the Divorce may then use that certificate to support the Divorce Petition.

You may contact your local ROM to receive more information on this.

A party may wish to be exempted from referring your matter to the Conciliatory Body, on the following grounds:-

• you allege that you have been deserted by and do not know the whereabouts of your spouse;


• your spouse is residing abroad and it is unlikely that he/she will enter Malaysia within six (6) months after the date of petition


• your spouse has been required to appear before a Conciliatory Board and has willfully failed to attend;


• your spouse is imprisoned for term of five (5) years or more;


• you allege that your spouse is suffering from an incurable mental illness; or


• the Court is satisfied that there are exceptional circumstances which make reference to a Conciliatory Body impracticable.

You may ask - why do we need to have this counseling before the Conciliatory Body if you want to divorce? Amongst the reason; is that the Law is built to try give both parties a chance to reconcile. Of course some Marriages can't be saved; but the Law does give the Couple a chance to get back together. There have been cases of couples who at the very end of the proceeding in Court, end up reconciling.

In Court, the Judge would look out for one of these evidences/factors to support the contention that the Marriage has irretrievably broken down:-

1. your spouse has committed adultery and you find it intolerable to live with your spouse;


2. your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her


3. your spouse has deserted you for a continuous period at least two (2) years before the date of your petition; or


4. both of you have lived apart from each other for a continuous period at least two (2) years before the date of your petition

You may also file a divorce if your spouse converts to Islam. You may do so, 3 months after the date of the conversion.

You may find some useful information from these links:-

1. http://www.lawyerment.com/library/kb/Families/Divorce/

2.http://www.malaysia.gov.my/EN/Relevant%20Topics/Society%20and%20Life/NonCitizen/nFamily/nMarriage/nDivorce/Pages/Divorce.aspx

*3.http://www.agc.gov.my/agc/Akta/Vol.%204/Act%20164.pdf

*no.3 above is a link to the Law Reform Marriage Act, which is the specific law, governing this area of Law.

If the Court grant the Petition, your lawyers would have to file a Decree Nisi which would last for about 3 months, thereafter the Decree Nisi would be deemed a Decree Absolute. If you have no idea what this 'Decree Nisi' means, it is a latin phrase which loosely means temporary order.

The 3 months period is the final 'attempt' by the Law to have both parties reconcile. As mentioned, some couples have been known to reconcile even at this late stage, after the Court has granted the Decree Nisi.

All proceedings will be at the High Court.