This article is about civil marriages in Malaysia and does not include Islamic marriages. Click here for our article on divorce in Islamic marriages.
So, you think you’ve found the “One”. You’ve been living together for a while, you get along great, and so you decide to tie the knot - imagining the two of you growing old together in a house with white picket fences, three children, and a dog named Boo.
Unfortunately, you both quickly find out that married life is a lot different from dating life, and the marriage ends in divorce.
Divorces have been on the rise in recent times, with statistics showing that one couple gets divorced every 10 minutes. But actually…how do you get a divorce in Malaysia?
You make a petition to the family court
A divorce is usually not as straightforward as going to court and tearing up that marriage certificate. There are also many factors involved - especially when the couple has children.
Civil (non-Islamic) marriages in Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976 (LRMD). Divorces are “petitioned” to a family court by one partner, or both partners in a marriage.
There are 3 requirements that must be fulfilled before a divorce can be filed:
Section 53(1) of the LRMD states that the only acceptable reason for divorce is when a marriage has “irretrievably broken down”.
Section 50 further states that divorce cannot be requested within 2 years of marriage (though if there is exceptional hardship, the court might allow it).
Section 55 provides that a couple must have counselling and assistance to reconcile their marriage, before a divorce proceeding can be considered by the court.
From that, you can probably get the idea that the law doesn’t make it that easy to get a divorce. Assuming a divorce proceeding has met these requirements, the court will hear the facts that led to the breakdown of marriage, and consider if it is reasonable to make a decree of divorce (as required by Section 53(2) of the LRMD).
Both husband and wife can also apply in a joint petition to have their marriage dissolved, but they will not be required to prove that their marriage has “irretrievably broken down”. The 2 year restriction will still apply though, and they still can get counselling if they wish. The court can make a decree of divorce once it has made sure that:
Both parties consented to the divorce of their free will
Proper provisions are made for the wife, and for the support, care, and custody of children (if any)
The court has attached conditions to the divorce as they see fit
There’s still the question of what “irretrievably broken down” actually means - it sounds subjective right? Well, the law accepts 4 grounds for this, and you must prove at least 1 of them if you’re requesting a divorce.
The 4 grounds for divorce
To get a decree of divorce, you must prove one of the following facts which are recognized as proof of breakdown under Section 54 of the LRMD:
1. Your partner committed adultery
The first ground accepted by the law is that your partner had committed adultery, AND you find it unbearable to continue living with them. The generally accepted definition of adultery in Malaysian case law is the voluntary sexual intercourse between a married person and a person of the opposite sex, where these two people are not married.
In proving this ground, it’s been decided in the case of Shanmugam v Pitchamany & Anor that you must prove that the adultery happened “beyond a reasonable doubt” - the level of proof normally required only in criminal cases. But, the court also recognized that people committing adultery are rarely caught in the act (or you could say: with their pants down), so the court can rely on circumstantial evidence to infer that adultery has taken place (things like holding hands, hearing noises from the bedroom, etc.)
2. You can’t be expected to live with your partner due to their behaviour
Under this ground for divorce, you’re required to prove that your partner has behaved in a way that you cannot be reasonably expected to live with them.
The standard of proof established by our case law for what is “reasonable” is based on what a reasonable, right-thinking person would conclude. This means that this is a subjective ground based on current morals and values, but in general, it covers situations where you have a constantly unhappy environment at home (frequent quarrels, long periods of silence between family members, lack of trust, etc).
3. Your partner has deserted you for 2 years
In simple language, using this ground for divorce is the same as saying “my spouse abandoned me”. To prove this ground, you need to show that:
Your partner intended to separate from you permanently
You did not consent to them separating from you
Your partner had no good reason to separate from you
The period of 2 years is continuous
According to an old English case from 1923 (Pulford v Pulford), desertion does not just refer to “not living together”, but can also refer to a situation where you are living in the same house, but are leading separate lives.
4. You’ve lived separately from your partner for 2 years
This ground is pretty self-explanatory. If you’ve been living away from your partner for a continuous period of 2 years, you can use it as a ground for divorce.
The court has to consider the whole scenario before pronouncing a divorce. They have to consider if your marriage is salvageable, and think especially of the best interests of your children (if you have any). If you manage to get your divorce certified by the court…
You’ll get a certificate, buuut your divorce is not yet finalized
Okay, divorce law itself is a bit like a persistent and clingy spouse - it’ll still give you chances to get back together. According to Section 61 of the LRMD, all decrees of divorce given at the first instance will be what’s called a decree nisi - which means that it is just a provisional declaration and has not been made absolute yet. Before the decree is made absolute, you can get it cancelled if you want.
In other words, even if the court declares that you’re divorced, you’re not officially/legally divorced yet!
You need to wait for 3 months from the time you get your decree nisi before you can make another application to the court to make your decree of divorce absolute. As with any other court proceeding, if you do need to go through with a divorce, it’s best to consult a lawyer to better know your options.