Divorce In Malaysia
Matrimonial proceedings for non – muslim couples are governed by the Law Reform (Marriage and Divorce) Act 1976 (hereafter referred “the Act”). Under the said Act, married persons could (based on individual circumstances) initiate divorce, annulment and judicial separation actions in the Family court.
A couple should be married for at least 2 years before they can proceed to petition for divorce. If both parties mutually consent to the divorce then a joint petition pursuant to Section 52 of the Act should be filed in court for the divorce.
However, if the divorce is contested then one has to firstly obtain a certificate pursuant to Section 55 of the Act from the reconciliation board. Upon obtaining the said certificate the party who is seeking a divorce could proceed to file in a unilateral petition on the grounds stated under section 54 of the Act namely adultery, behavior of the spouse is such that the petitioner cannot reasonably be expected to live with him/her, desertion of continuous period of at least 2 years or lived apart for a continuous period of two years before the presentation of the petition.
It has to be noted that if the petition is presented under the ground of adultery under section 58 of the Act the Petitioner can add the adulterer or adulteress as a co-respondent and also claim for damages for adultery. Under section 59 of the act the Court has the power to award damages against the co-respondent notwithstanding that the petition against the respondent has been dismissed or adjourned.
Under section 76 of the Act the court is empowered to order division of matrimonial assets i.e. properties that were acquired during the subsistence of the marriage. The Petitioner can also claim for maintenance of spouse under Section 77 of the Act. The courts are vested with wide powers to award maintenance of which includes under Section 86 of the Act, the recovery of arrears of maintenance owing to the particular spouse.
The court also has extensive powers for the protection of the children of the marriage. Under section 88 of the Act the court has the power to decide of custody of the children of the marriage and under section 93 of the Act order for the payment of maintenance for the children and for the recovery of arrears of maintenance payment for the children (section 98 of the Act). Under section 88(3) there is a rebuttable presumption that it would be good for a child under the age of seven to be with his mother. However, welfare of the child is the paramount consideration in all matters relating to custody , thus, the courts would be vigilant to the undesirability of disturbing the life of the child and also the wishes of the child.
As the said Act is a social legislature, ancillary orders such as maintenance, custody etc could be varied in accordance to change of circumstances.