Malaysia Divorce Top 10 FAQ

#1 Does a couple need to separate for more than two years before they can apply for a divorce?

Actually, there is no need to. In a joint petition, as long as the couple wants to get a divorce, it can be for any reason and at any time. Not necessary, they must be separated for more than two years.

However, in a single petition or we also call it as unilateral divorce, the party can get a divorce under 4 circumstances:

(1) In the first circumstance whereby a spouse has been separated for more than 2 years

2) The other circumstance is where one of the spouses has deserted the other  for more than two years

3) The third circumstance is that one of the spouses has committed adultery.

4) The final situation is whereby  one of the spouses has behaved in an unreasonable way to the extent that the other spouse cannot withstand  it.

Thus, one of the spouses can file for a single petition.

#2 If my spouse does not agree to a divorce, does that mean I cannot file for a divorce?

No, it is not true. You can actually file for a unilateral divorce or we usually call it as a single petition.

#3 Does the divorce procedure take a long time?

In the joint petition or we call as mutual divorce, normally it only takes about 1 month. Whereas in a single petition or we call it as unilateral divorce, it usually takes from about five  to 6 months.

#4 Wife: How much maintenance fee is considered reasonable?

Actually, it depends on the needs of the wife and the capability of the husband. Assuming that a husband earns RM 3,000 a month, and if the wife is asking for a RM 4,000 monthly maintenance (fee), then it is totally unreasonable. Hence, it has to be within the capability of the husband, and at the same time it must fulfil the needs of the wife.

#5 How to determine the division of matrimonial assets?

Mutual Divorce (Joint Petition):

In a mutual divorce or we call as a joint petition, the party can actually divide the matrimonial assets based on their own wishes.

Unilateral Divorce (Single Petition):

In an unilateral divorce or we call it as a single petition, both parties can individually request the matrimonial assets to be fully given to each one of them. However, the decision on to whom it is to be given, it ultimately is in the hands of the court.

#6 What about the custody of the child after my divorce?

Mutual Divorce (Joint Petition):

In a mutual divorce, or we call it as a joint petition, the husband and wife can actually freely assign the custody, care and control of the child to the husband or to the wife based on their own wishes.

Unilateral Divorce (Single Petition):

In a unilateral divorce or as we call it a single petition, both the husband and wife can individually request for the custody, care and control of the child to be granted to them but ultimately the decision is in the hands of the court.

#7 What is the difference between a divorce and an annulment of marriage?

If a party files for an annulment of marriage, the effect will be as if he was never married before and under what circumstances can he actually file for an annulment of the marriage?

For example, if there is no consummation of the marriage and of course there are other circumstances as well whereby we shall discuss this topic in detail the next time.

#8 If my husband refuses to pay for the maintenance fee, what should I do?

There are several methods to solve this problem,

1) The first method will be bankruptcy proceedings, this is when the other half owes RM50,000 of maintenance. The other half can actually file a bankruptcy proceeding against the other spouse.

2) The second method we call as Garnishee Proceedings. For example, the wife can actually apply a court order whereby the court order allows the wife to get the money from the husband account without going through the husband.

3) The third method we call as Judgement Debtor Summons. For example, the wife can apply to summon the husband to go to court to explain why he incapable to pay the maintenance. In the event the husband fails to give an explanation, the court can order the husband be sent to jail.

4) The fourth method we called as Committal Proceedings. This is when the husband refuses to pay the maintenance, he has actually committed a contempt of court, and the court can actually order him to go into a civil jail.

#9 If the wife is not capable to maintain the child, will the custody, care and control of the child automatically belong to the husband?

It is not true at all. Assuming that the wife doesn’t have earning capacity, she can always ask the court to order the husband to pay her the child maintenance and let her to maintain the child.

#10 The court has ordered the matrimonial assets to be sold off and the other party refuses to comply with the order, what is the solution?

The court staff such as the court registrar can actually sign the sales documents on behalf of the affected party to effect the court order.