The laws on marriage and divorce for non-Muslims in Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). A contested petition (also known as a single petition) is an application to the High Court for divorce in which both husband and wife dispute the terms of the divorce or even the divorce itself. This article will attempt to answer ten frequently asked questions regarding contested petitions.
Frequently Asked Questions
1. Can I get a divorce if we have only been married for a short time?
No, you cannot petition for divorce unless you have been married for at least two years. However, the Court can allow exceptions if there are exceptional circumstances or you have suffered exceptional hardship.
There is also the possibility of applying to annul the marriage if there are grounds for annulment. There is no minimum time requirement for an application for annulment. (Read more about the annulment of marriage here.)
2. How do I commence the contested divorce process?
To commence the divorce process, you will first have to register for marriage tribunal sessions (“Marriage Tribunal Sessions”) at the National Registration Department branch nearest to the Matrimonial Home.
After two to three sessions with the marriage tribunal, the marriage tribunal will issue a certificate under Section 106 of the LRA if the attempts at reconciliation are unsuccessful. This certificate will state that the marriage tribunal has failed to reconcile the disputes between you and your spouse. Your lawyer can then file the contested petition at the High Court for divorce after obtaining this certificate from the marriage tribunal.
3. Is it possible to dispense with the Marriage Tribunal sessions?
Yes, it is possible to dispense with the reconciliation sessions at the Marriage Tribunal if any of the following circumstances apply to you:
- Your spouse has deserted you;
- Your spouse is residing abroad and it is unlikely that he/she will enter Malaysia within six months after the date of filing of the contested petition;
- Your spouse is imprisoned for five years or more;
- Your spouse is suffering from an incurable mental illness; or
- There are exceptional circumstances which make reference to the marriage tribunal impracticable (e.g.: domestic violence, spouse unreachable/uncontactable etc.)
4. Do I have to live apart from my spouse for two years before filing for divorce?
No, living apart is not a requirement for the filing of a contested petition. However, it is necessary to prove that there has been a breakdown of the marriage in order to obtain an order for divorce. Living apart from your spouse for two years before filing for divorce is sufficient proof of the breakdown in marriage. The other factors which prove the breakdown of the marriage include:
- Your spouse has committed adultery and you find it intolerable to live with him/her;
- Your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her; and
- Your spouse has deserted you for a continuous period of at least two years immediately preceding the filing for divorce.
5. What is the court process like and how long will it take?
The court process begins with your lawyer filing a divorce petition supported by other cause papers including an affidavit and a statement as to arrangement for children (if there are children of the marriage). Your spouse will have an opportunity to file an Answer to your divorce petition and you will also have an opportunity to file a Reply to the Answer.
After all the aforementioned cause papers are filed and if there are no interlocutory applications, the petition will be fixed for trial wherein you will be a witness. As a witness, you may be cross-examined (asked questions) by your spouse’s lawyers regarding, among others:
- The statements in your divorce petition and Reply;
- The statements in your witness statement;
- Any other documentary evidence which are filed by parties into court before the trial.
The trial will likely take more than a day depending on the number of witnesses called by either party and the complexity of the case. After the trial is completed, a date will be fixed for a hearing wherein each party’s lawyers will submit legal arguments to court (based on the available evidence) in support of each party’s respective positions.
A decision on the divorce petition will be made by the High Court after the hearing.
The High Court will try to complete the proceedings in nine months. However, the process can take if the Court is particularly busy or if there are interlocutory applications or other delays.
6. What questions will the Court consider in a contested petition?
When hearing a contested divorce petition, the Court will, when applicable or relevant, consider decide on the following questions:
- Whether there are grounds for divorce to be granted?
- Whether allegations of adultery are proven? If so, the amount of damages to be paid by the third party adulterer or adulteress?
- Which parent will have guardianship, custody, care and control over the children (if any)?
- What are the periods of access allowed to the parent who does not have custody, care and control over the children?
- How much child maintenance is required to be paid?
- How much spousal maintenance is required to be paid?
- How the matrimonial assets are to be divided between the spouses?
7. Will mothers usually get custody of the children after divorce?
There is a rebuttable presumption that it is for the good of a child below seven years old to be with his/her mother. However, as this is a rebuttable presumption, a father can still attempt and furnish evidence to rebut this presumption and prove otherwise (e.g. by providing evidence to show that the mother is an unfit mother).
For children seven years old and above, the presumption will not apply and the child’s welfare will be the paramount consideration for the Court in deciding in whose custody a child should be placed.
The Court will also consider the wishes of the parents and the wishes of the child (if the child is old enough to express an independent opinion) when deciding on the question of custody.
8. Are all assets divided 50-50 between husband and wife during a divorce?
No, the division of matrimonial assets may not be equal in all circumstances.
The Court will consider the following factors before making a decision on the division of assets:
- the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family;
- the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;
- any debts owing by either party which were contracted for their joint benefit;
- the needs of the minor children, if any, of the marriage; and
- the duration of the marriage.
The contribution of each party to the acquisition of the assets and the contribution of each party to taking care of the home or caring for the family will usually play a significant part in determining how a matrimonial asset will be divided.
9. How much maintenance do I need to pay my former wife after the divorce?
The Court will look at the means and needs of each party when assessing the quantum of maintenance that needs to be paid.
Generally, the Court will endeavour, subject to the husband’s financial position, to place a former wife in a position to enjoy the same standard of living as she had during the existence of the marriage.
Therefore, if there is a claim for maintenance by your former wife, it is important to look into the claim and examine whether the expenses claimed are justified.
On the other hand, a woman will only be required to pay maintenance to a former husband if he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the court is satisfied that having regard to the woman’s means it is reasonable to order her to pay such maintenance.
Nevertheless, an order for spousal maintenance can be varied if the necessary legal requirements are satisfied. To read more about variation, please refer to our article on Variation of Maintenance Orders.
10. How is child maintenance determined and when will it end?
The Court will look at the means and station in life of the parent when assessing the quantum of child maintenance that needs to be paid. The child maintenance paid will usually need to cover areas such as accommodation, clothing, food and education for the child.
The court may order a man to pay child maintenance:
- If he has refused or neglected reasonably to provide for the child;
- If he has deserted his wife and the child is left with the wife;
- During the pendency of matrimonial proceedings; or
- When making or subsequent to the making of an order of custody
The Court will also have the power to order a woman to pay child maintenance if it is satisfied that she has the means to do so.
Payment for child maintenance will usually end when a child reaches the age of eighteen years. However, if the child is suffering from a physical or mental disability, or is pursuing further or higher education or training, child maintenance will have to be paid until the ceasing of such disability or completion of such further or higher education or training.
Similar to an order for spousal maintenance, an order for payment of child maintenance may also be varied in certain circumstances.
By Eric Toh