1. The main legislations governing family matters (i.e marriage, children custody) in Malaysia.

The Law Reform (Marriage & Divorce) Act 1976 (“LRA”) came into force on 1^st March 1982 and was further amended in 2017 – (Law Reform (Marriage and Divorce) (Amendment) Act 2017).

Other important and relevant legislations in relation to non-Muslim family matters in Malaysia include:[1]

• Child Act 2001
• Guardianship of Infants Act 1961
• Married Women Act 1957
• Married Women & Children (Maintenance) Act 1950

2. Are laws governing marriage for Non-Muslims and Muslims the same in Malaysia?

It is pertinent to note that the laws governing marriage, divorce, and the welfare of children for non-Muslims are different from those governing Muslims in Malaysia.

Islamic Family Law is governed by Islamic Family Law Enactments and Acts (Enakmen Undang-Undang Keluarga) which vary from state to state [2]

For instance, Islamic Family Law (Federal Territory) Act 1984 for Federal Territories (Kuala Lumpur, Labuan, and Putrajaya) and Islamic Family Law (State of Selangor) Enactment 2003 for Selangor.

3. When can I bring a divorce petition claim in Malaysia?

Irrespective of whether you are filing a single petition or joint petition to divorce your spouse, Section 50(1) of the LRA provides that ‘no petition for divorce shall be presented to the court before the expiration of the period of two years from the date of the marriage’. This would mean that you and your spouse must be married for a minimum period of 2 years to bring a divorce petition claim in Malaysia.

Exception to Section 50(1) LRA

An exception to Section 50(1) can be found in Section 50(2), where the petitioner had suffered exceptional or hardship circumstances (for example a violent or abusive spouse), to which the Court might consider allowing the presentation of your divorce petition claim before your marriage of two years if you are able to prove any exceptional or hardship circumstances.

4. What are the differences between a single divorce petition and a joint divorce petition?

• Governing Section Under LRA.

The governing section for a single petition under the LRA is Section 53 while the governing section for a joint petition is Section 52 of the LRA.

• Consent

Unlike a joint divorce petition which requires the mutual consent of both parties, a single divorce petition is presented by one party without the consent of the other to dissolve the marriage (ie. mutual consent is absent). However, there are requirements to fulfil before filing a single divorce petition, as explained below.

• Marriage Counselling Sessions

Parties to a joint petition are not required to attend any marriage counselling sessions at the National Registration Department (Jabatan Pendaftaran Negara (“JPN”) whilst Section 106 of the LRA provides that parties to a single divorce petition will need to attend three (3) compulsory marriage counselling sessions arranged by the JPN officers, to which JPN will issue a ‘failure to reconcile’ letter if the parties failed to attend the sessions or reconcile. Do note that there are exceptions to the attendance of such marriage counselling sessions such as desertion, imprisonment, mental illness, etc. as found under Section 106 of the LRA.

• Grounds of Breakdown of Marriage

Parties to a joint divorce petition are not required to prove that their marriage has ‘irretrievably broken down’, provided that the parties freely consent to the terms of the divorce whilst Section 53 of the LRA provides that either party to the marriage may file a petition to divorce on the ground that the marriage has irretrievably broken down, to which the facts and circumstances that allegedly caused or led to the breakdown of the marriage will be examined.

5. Features of Joint Petition and Single Petition

Joint Petition

• Shorter timeframe as there is no need to go to Court to deliberate on the terms of the divorce such as division of assets, custody of children etc. unlike single petitions.
• Cost-saving compared to single petitions as the matter is less complex and the legal costs incurred will be lower when a couple mutually agrees to divorce.
• Preserves the already-strained relationship of the parties.
• The final decision is made by the parties themselves and not the Court.

Single Petition

• Does not require the consent of the other party to the marriage when filing the single petition and this is particularly applicable in scenarios of desertion (eg: partner cannot be located).
• Parties to a single petition can make individual requests on matters such as custodianship, matrimonial assets, guardianship to be fully given to each of them.
• Single petitions may be more costly depending on the complexity of the case due to the court fees and legal fees (to decide on the division of matrimonial assets, care of any children etc.) in addition to the costs of filing the divorce paperwork such as the RM160 required for the filing of a divorce petition, the RM300 for the issuance of the decree nisi and the RM150 for the issuance of the decree nisi absolute.[3]
• Single petitions generally require more time and more complex procedures such as the filing of the cause papers in Court, the arrangement, attendance of the Court hearing as compared to the shorter timeframe and direct procedure of Joint Petition.

6. Requirements to file a single divorce petition

• Section 106 of the LRA provides that parties to a single petition must first be married for at least two (2) years (unless in exceptional circumstances).
• Parties to a single petition are required to attend several marriage counselling sessions, to which the National Registration Department officers will issue a failure to reconcile letter if the parties had failed to reconcile (by failing to attend the counselling session etc.).
• Only then can the petitioner file a single divorce petition and serve the divorce papers to the other party to the marriage.

7. Grounds for divorce (only applicable for single petitions as joint petitions do not require any ground)

In order to satisfy the sole ground of ‘irretrievable breakdown of marriage’ in Section 53 so as to file the single divorce petition in the High Court, the petitioner will have to prove one of the 4 grounds in order to satisfy the proof of breakdown, which are provided under Section 54 of the LRA:

1. Adultery; or

2. Unreasonable behavior; or

3. Desertion; or

4. Separation

8. Do I have to go to marriage counselling sessions before filing my divorce petition?

Whilst parties to a joint petition divorce are not required to refer their matrimonial difficulties to a conciliatory body or attend any marriage counselling sessions prior to the filing of the divorce petition , parties to a single petition  are required to attend marriage counselling sessions at JPN prior to the filing of the divorce petition as per Section 106 of the LRA as ‘the purpose and intent of Section 106 is to reconcile parties where there is a reasonable probability of a reconciliation’.[4]

Parties can make an application to the conciliatory body (ie. JPN) using the KC14 form (Application For Reference to Conciliatory Body) can be found at https://www.jpn.gov.my/images/BorangBKC13jan2021/JPNKC14.pdf.  The parties are required to attend the three (3) compulsory marriage counselling sessions arranged by the JPN.  If the parties fail to reconcile or refuses to attend the marriage counselling sessions, the JPN officers will then issue a failure to reconcile letter and/or certificate certifying that it had failed to reconcile the parties[5]

However, exceptions to the attendance of marriage counselling sessions are also further provided in Section 106 where in such cases; parties will not be required to attend the marriage counselling sessions. Pursuant to Section 106, the exceptions are:

• where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse; 
• where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition; 
• where the respondent has been required to appear before a conciliatory body and has wilfully failed to attend; 
• where the respondent is imprisoned for a term of five years or more; 
• where the petitioner alleges that the respondent is suffering from incurable mental illness; or 
• where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable.

9. Duration

Joint Petition

4 to 6 months

Single Petition

A single divorce petition would take longer compared to Joint Petition. It may take 9 to 12 months or much longer, depending on the complexity of the case.

Finances upon Divorce

1. What do courts consider when determining the division of matrimonial / jointly acquired assets between the parties?

The courts will consider multiple factors or considerations when determining the division of matrimonial or jointly acquired assets between the parties as per Section 76(1) of the LRA such as:

• The extent of contribution in terms of how much work, property or money contributed towards the acquiring of the property,
• Any debts owing by either party which were for the family’s benefit; and
• The needs of any minor children

** This division of assets under LRA is no longer limited to matrimonial or jointly acquired assets due to the additional powers on the Court conferred by the Law Reform (Marriage and Divorce) (Amendment) Act 2017 that also allows for the distribution of all assets acquired during the marriage and incline towards equality of division, to which additional considerations in the division include the duration of the marriage and the extent of non-financial contributions made by the other party to the welfare of the family (ex: housework, repairs, etc.) rather than towards the acquisition of matrimonial assets.[6]

2. Matrimonial and non-matrimonial properties

Matrimonial Property / Assets

Matrimonial property refers to properties and/or assets which are jointly acquired either by the joint or sole efforts of the husband and wife during the marriage other than by inheritance or gift.[7] It is also important to note that matrimonial assets/properties acquired during a marriage (that will be subjected to division during divorce) are not confined to assets jointly acquired by the parties during the marriage, but also includes assets/properties that are acquired or owned by a party before the marriage that have been ‘substantially improved’ by the other party during the course of marriage. Therefore, any gifts or inheritance that can be shown to have been substantially improved through the efforts of one or both parties during the course of the marriage may constitute matrimonial assets and subjected to division upon divorce.

Whilst the LRA does not provide for the types of matrimonial property to be subjected to division upon divorce, the meaning of “matrimonial asset” has been widely interpreted through case laws.  The following have been held to comprise matrimonial assets[8]:

• Movable and immovable property (ex: the matrimonial home; landed properties acquired during the marriage, etc.…)
• Insurance and retirement funds, including contributions made to the Employees Provident Fund (EPF) during the marriage
• Shareholdings and investment in companies.
• Assets (on proof) in the names of nominees or held on trust.
• Gifts from one spouse to the other

Non-Matrimonial Property/ Assets

Non-matrimonial property; on the other hand, refers to financial assets which are acquired during the date of the marriage by the sole effort of a party and these can include gifts and/or inheritance from third parties or stocks or shares in a company in which you had purchased with your own money.[9]

The primary difference between matrimonial and non-matrimonial property lies in the fact that matrimonial or jointly acquired assets can be divided between the couple during divorce proceedings while non-matrimonial assets that are acquired before the marriage such as inherited properties will not be subjected to division during divorce proceedings.

3. Can I get alimony or maintenance from my partner upon divorce?

It is possible for a spouse or wife to obtain maintenance or alimony from their partner during proceedings or upon divorce as the courts have the power to do so under Section 77. The courts have to consider a wide range of factors when determining the amount of alimony or maintenance. Pursuant to Section 77, this is dependent on:

• The earning capacity and financial needs of the parties;
• The duration of the marriage,
• The age of wife,
• The standard of living of the family,
• The financial support provided to the wife during the marriage as well as how much you contributed towards the breakdown of the marriage.

Section 82 also provides that the right to maintenance stops if the spouse is living in adultery or if he or she remarries. The court also has additional powers under Section 83 and Section 96 to modify or rescind the maintenance order from time to time if the court is satisfied ‘that the order was based on any misrepresentation or mistake or fact’ or following a material change of circumstances.

Do note that the court may also order the wife to pay maintenance to her husband or former husband as conferred by powers under Section 77(2) only in the limited circumstances where her husband or former husband is ‘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 her means it is “reasonable so to order”’.

Children

1. Court’s consideration when determining custody of children

The primary and paramount consideration of the court when determining child custody is the welfare of the child, and the court shall also have regard for the wishes of the parents of the child and the child itself (if the child is old enough to express an opinion over who to stay with) as per Section 88(2) of the LRA. Do note that there is no exact age as to when a child is deemed to be old enough to express their opinion as long as the child can decide independently without any external influences such as family members as seen in the case of Yong May Inn v Sia Kuan Seng.[10]

When considering the welfare of the child in determining the custody of the children, the courts will give regard to the status quo of the child and ought not to change the custody of the child in situations where the child has been living in an environment in which he or she is familiar and comfortable with because this will disrupt the life of the child (ex: the court may not change custody if the child has been living with one parent during the separation period).[11] Other considerations of the court in deciding disputes relating to custody include: the whole of the circumstances of the case; the religion of the child; the position of the parent or child and so forth.

2. Child maintenance from ex-husband during divorce proceedings

Child maintenance can be ordered under Section 3(1) of the Married Women and Children (Maintenance) Act 1950. The court may make an order for maintenance of the wife and children of any person who neglects or refuses to maintain his wife or a legitimate child of his which is unable to maintain itself to pay a monthly allowance for maintenance in proportion to the means of that person, as is deemed reasonable by the Court   under Section 92 and Section 93 of the LRA.

Section 92 provides for the duty of a parent to maintain or contribute to the maintenance of his or her children (whether they are in his or her custody or the custody of any other person) in terms of accommodation, clothing food and education The child maintenance order can be ordered by the court at any time under Section 93(1) where the man has refused or neglected reasonably to provide for the child; has deserted his wife and the child is in her charge, and during and subsequent to any matrimonial or custody proceedings.

3. Child maintenance from ex-wife during divorce proceedings

Pursuant to Section 93(2), the court may order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order. The courts will also have to assess the child maintenance based on the needs of the child and also the lifestyle of the parties during the marriage.

4. Do custody and child maintenance orders last forever?

Section 95 of the LRA provides that orders for custody and maintenance of children will normally cease upon the child reaching the age of 18. However, the Law Reform (Marriage and Divorce) (Amendment) Act 2017 had amended Section 95 and has now extended the parental obligation to provide maintenance of children beyond the age of 18 where a child is under physical or mental disability or is pursuing further or higher education or training.

5. Can divorced parents lose child custody in Malaysia? If so, in what situations can divorced parents lose child custody in Malaysia?

There is a presumption in Section 88(3) of the LRA that the better custodial parent to raise the children below the age of seven years are mothers in addition to the fact that regard would be given to the importance of the status quo custodial arrangement to prevent the disruption of the life of the child, therefore mothers in Malaysia are automatically granted the sole custody of a child below the age of 7 resulting in the contentious issue of unequal access to children for fathers.

However, there are several situations that may cause one party to lose the custody of their children. Under Section 96, the Court may vary the orders of any agreement relating to the custody or maintenance of a child on the application of any interested person at any time and from time to time, where ‘it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances. This may encompass the following situations (the list is not exhaustive):[12]

• If the child does not want to stay with that parent (paramount consideration shall be the welfare of the child)
• If the parent lives in adultery
• If the parent remarries someone who already has a child or has a child from his/her subsequent marriage
• Parents with abusive and bad character that could have a lifelong negative effect on the child
• Change of residence
• On grounds of abjuration of Islam
  – Refer to the cases of M. Indira Gandhi from Perak and S. Deepa from Negri Sembilan where their ex-husbands unilaterally converted their kids to Islam and were granted custody by the Syariah Court
• Neglect, cruelty, or failing to care for the child

[1] Foo Yet Ngo and Kiran Dhaliwal, ‘Family law in Malaysia: overview’ (Thomson Reuters, 01-Oct 2020) <https://uk.practicallaw.thomsonreuters.com/1-570-7827?transitionType=Default&contextData=(sc.Default)> accessed 29 September 2022.

[2] Raihana Abdullah, ‘A Study of Islamic Family Law in Malaysia: A Select Bibliography’ International Journal of Legal Information (2007) 35(3) <https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1111&context=ijli> accessed 29 September 2022.

[3] ‘How Much Does It Cost to Get a Divorce in Malaysia?’ (Loanstreet, 25 August 2021) <https://loanstreet.com.my/learning-centre/cost-of-divorce-malaysia> accessed 29 September 2022.

[4] C & A [1998] 6 MLJ 222

[5] ‘Family Law – Single Petition – Joint Petition – Child’s Custody And Guardianship’ (Yew Huoi, How And Associates Malaysia Law Firm, 28 June 2021) <https://yhalaw.com.my/zh/family-law-single-petition-joint-petition-childs-custody-and-guardianship/> accessed 29 September 2022.

[6] Sridevi Thambapillay ‘The 2017 Amendments To The Law Reform (Marriage And Divorce) Act 1976: A Milestone Or A Stone’s Throw In The Development Of Malaysian Family Law?’ (2020) 28(2) IIUM Law Journal < https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/604> accessed 29 September 2022.

[7] Mohd Norhusairi and Mohd Hafiz, ‘Harta Sepencarian vs Harta Perkahwinan dalam Perundangan Sivil: Satu Sorotan Ringkas’ (2016) 6 (1) Al Basirah <https://ejournal.um.edu.my/index.php/ALBASIRAH/article/view/18964> accessed 29 September 2022.

[8] Ezane Chong and Vivian Siew, ‘Division of Matrimonial Assets’ (Skrine, 31 March 2015) <https://www.skrine.com/insights/newsletter/march-2015/division-of-matrimonial-assets> accessed 29 September 2022.

[9] Thomson Reuters Practical Law, “Non-matrimonial property” (Thomson Reuters,2023) https://uk.practicallaw.thomsonreuters.com/0-537-9925?transitionType=Default&contextData=(sc.Default) accessed 13^th March 2023

[10]  [1971] 1 MLJ 280; Kasturi Puvanesvaran, ‘Who Gets Child Custody in a Divorce?’ (Thomas Philip, 13 December 2020 <https://www.thomasphilip.com.my/articles/who-gets-child-custody-in-a-divorce/> accessed 29 September 2022.

[11] Masam v Salina Saropa & Anor [1974] 2 MLJ 59; B Ravandran s/o Balan v Maliga d/o Mani Pillai [1996] 2 MLJ 150.

[12] Kadir, R., Abdullah, R., & Mokhlis, ‘Understanding why mothers can lose child custody in Malaysia’ (2021), 12(1), UUM Journal of Legal Studies, 1-25 <http://www.uumjls.uum.edu.my/images/Vol12no1Jan2021/1-25.pdf> accessed 29 September 2022.

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