The process of ending a marriage is never easy. It can be emotionally draining and fraught with legal complexities. In Malaysia, the divorce procedure can vary based on whether the marriage falls under civil law or Islamic law. This guide aims to provide a comprehensive understanding of the divorce procedure in Malaysia under both these laws.
Civil Divorces in Malaysia
Grounds for Divorce
To proceed with a divorce under civil law, either party must prove the marriage has irretrievably broken down due to one or more of the following reasons:
- Adultery
- Desertion for a period of at least two years
- Separation for a period of at least two years
- Unreasonable behaviour that makes living together intolerable
The Divorce Process
Initial Petition
The process begins with the filing of a divorce petition in the High Court. The petition must state the grounds for divorce and include all relevant details such as the date of marriage and information about any children. The petitioner must serve the divorce papers on the other party, who then has 8 days to respond.
Case Management
The court then schedules a case management date where both parties and their lawyers discuss the case. If both parties agree to the divorce, the court will set a hearing date. If there is disagreement, the court will order mediation or a trial.
Trial and Judgment
During the trial, both sides present their case. The judge then decides whether to grant the divorce. If granted, the court issues an Interim Judgment, which will be made Final after three months.
Islamic Divorces in Malaysia
For Muslim marriages, the divorce procedure is handled by the Syariah Court and can be initiated by either the husband (Talaq) or the wife (Fasakh).
Talaq (Divorce by Husband)
The husband can pronounces the talaq verbally in the presence of two witnesses. After the pronouncement, there is a three-month waiting period (iddah) before the divorce is finalized.
Fasakh (Divorce by Wife)
The wife can file for divorce on several grounds including cruelty, desertion, failure to provide maintenance, and impotency. The procedure involves filing a petition with the Syariah Court, attending a hearing, and obtaining a judgment.
Division of Assets and Child Custody
In both civil and Islamic divorces, the division of assets and child custody are significant issues. Malaysian law aims for a fair division of matrimonial assets. Child custody is determined based on the child’s welfare.
Seeking Legal Advice
It is advisable to seek legal advice to navigate the divorce procedure in Malaysia. A lawyer can guide you through the complex legal process, providing advice tailored to your specific situation.
Summary
The divorce procedure in Malaysia can be complex, varying based on the type of marriage. Understanding the process can help alleviate some of the stress. Remember, seeking legal advice can make the process smoother and ensure your rights are protected.
