By Eric Toh
Matrimonial matters concerning non-Muslims in Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). A joint petition is an application to court whereby both parties to a marriage consent and agree to a divorce and to all the terms of a divorce. A Joint petition is generally less costly and will be resolved in a shorter time as compared to a single petition (contested divorce). This article will provide an overview of the requirements to be satisfied by parties who wish to obtain a divorce by way of a joint petition as well as a summary of the court process involved in a joint petition.
What is Not Required
Unlike a single petition, parties who opt for divorce by way of a joint petition are not obligated to attend marriage counselling at the National Registration Department before applying to the High Court of Malaya for an order for divorce.
What is Required
- In most cases, parties must have been married for at least two (2) years prior to applying for a divorce.
- The marriage must be registered or deemed to be registered under the LRA or the marriage was contracted under a law providing that the marriage is monogamous.
- Parties must be domiciled in Malaysia. The domicile of a person is determined by the person’s “place of residence or ordinary habitation, a house or home, the place where one has his permanent residence, to which, if absent, he has the intention of returning”.Under the common law, a wife’s domicile will follow her husband’s domicile. For example, if the wife is a Malaysian and the husband’s domicile is Singapore, the domicile of the wife will be Singapore.
- Parties must agree to all the divorce terms regarding maintenance (spousal and children, if any), matrimonial assets (if any), custody, care and control as well as access to children (if any).
Documents to be Filed
The documents that have to be filed for a joint petition are typically as follows:
- The Joint Petition;
- Affidavit verifying the contents of the Joint Petiiton;
- Statement as to Arrangements for Children (where there are children born to the marriage);
- Decree Nisi & Order (after hearing at the High Court);
- Decree Absolute (usually 3 months after the Decree Nisi).
- After a joint petition is filed at the High Court, for example at the Kuala Lumpur or Shah Alam High Court, the hearing for the joint petition will be fixed approximately 1 to 2 months after the filing of the joint petition.
- Both husband and wife are usually required to attend court on the day that is fixed for hearing of the joint petition. The attendance of a party on the day of the hearing may be exempted but good reasons must be given for the party’s non-attendance. The reasons and evidence to support the reasons must be filed beforehand together with an affidavit affirmed by the party who wishes his/her attendance to be exempted.
- When the parties’ case is called, the terms of the joint petition will be read out by the parties’ solicitors to the High Court judge. The High Court judge will then ask both parties whether they both understand and agree to the terms stated in the joint petition. The High Court judge will only grant the orders prayed for in the joint petition upon being satisfied that both parties understand and freely consent to the terms stated in the joint petition.
- Parties will then be granted a Decree Nisi for divorce which will be made absolute after 3 months wherein the parties will be formally divorced. The time period of 3 months can be shortened but good reasons will have to be provided to the court to do so.
- In summary, the whole joint petition process should take approximately 4 to 5 months to complete.
In a joint petition, the court will have to be satisfied that “proper provision is made for the wife” before granting an order for divorce. However, there is no corresponding need for proper provision to be made for the husband. Hence, a joint petition usually contains a term for the husband to pay maintenance to his wife unless his wife agrees that maintenance is not required. Maintenance payments can be made by way of a one-off lump sum or periodically (eg. monthly payments).
An order for maintenance will expire:
- if the maintenance was unsecured, on the death of the husband or of the wife, whichever is the earlier;
- if the maintenance was secured, on the death of the spouse in whose favour it was made;
- where the spouse receiving maintenance remarries; or
- where the spouse receiving maintenance lives in adultery with any other person.
Custody, Care and Control and Access
In a joint petition, the court will also have to be satisfied that “proper provision is made for the support, care and custody of children” before granting an order for divorce.
As such, a joint petition must contain terms regarding:
- Custody of the child (whether a parent has sole custody or both parents have joint custody of the child)
- Which parent has daily care and control of the child; and
- Access period of the non-custodial parent where custody, as well as daily care and control of the child, is given to the other parent.
The terms of access for the non-custodial parent may range from a general “reasonable access” clause to more a specific clause that covers access on special occasions such as birthdays, school holidays, public holidays, religious and festive holidays etc. There are generally no stringent rules on the access period so long as it is agreed by the parties.
Orders as to custody and access will usually cease when the child turns eighteen (18).
Parents have a duty to maintain their children regardless of who has custody of the child. Nevertheless, child maintenance will usually be paid to the parent having custody, care and control of a child.
In addition to maintenance payments for the child’s living expenses, parties may also agree to apportion the child’s education fees, medical expenses and insurance premiums.
An order for child maintenance will usually expire upon the child attaining the age of eighteen (18). However, if the child suffers any physical or mental disability, or is pursuing further or higher education or training, the order for maintenance will only expire at the cessation of such disability or completion of such further or higher education or training.
Parties can agree on the division of matrimonial assets in any way they see fit. The assets that are usually the subject of division will be the matrimonial home, monies in bank accounts, cars, shares and any other matrimonial assets (if any).
However, it is important to note that the High Court will only grant an order for the division of assets when granting a decree of divorce. Therefore, parties should include all the assets that they wish to divide in their joint petition to prevent potential future disputes in relation to matrimonial assets that are not mentioned or pleaded. It is vital to note that the High Court does not have jurisdiction under the LRA to make an additional order for such asset after the decree for divorce has been granted.
By Eric Toh
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