Aftermath of divorcing at Malaysia : What will you get and what will you lose?



As divorce comes with an ambiguous loss, children of divorced parents often experience an unclear traumatic pain which can last for a lifetime. When custody is given to one parent, it physically detaches the other parent toward leaving the family. This detachment will eventually affect the relationship between parents and children. The severity of the detachment becomes worse in many cases due to other consequences of divorce like changing schools or living environments which in many cases can take the child far away from the non-custody parents. This revealed that the consequence of divorce and the deterioration of the parent-child relationship could lead to intense feelings of grief in children. Children are often more affected by the divorce than their parents.
However, in Malaysia, divorce has become very common and the statistic showed an increasing rate of divorce from the year of 2017 – 2018. The number of divorces increased 0.1 per cent from 50,314 (2017) to 50,356 (2018).

Divorce Proceeding
There are 2 ways to begin a divorce proceeding, either by way of mutual consent or unilateral petition. As a general rule, no petition for divorce can be filed within 2 years of marriage unless it can be proven that the case is one of the exceptional circumstances or hardship suffered by the petitioner.
Joint Petition
Section 52 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) states that if the husband and wife mutually agree that their marriage should be dissolved, they may after expiration of 2 years from the date of their marriage present a joint petition accordingly.  The rationale of a divorce by mutual consent is that where a couple mutually agrees that it is in the best interests that their marriage be dissolved, the Court may upon satisfied of the same and that proper provision is made for the wife and for the support, care and custody of the children, if any, of the marriage, attach such conditions to the decree of divorce as it thinks fit.
Unilateral Petition
Under section 53(1) of the LRA, either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.  But before the presentation of such petition, the party who seeks for a decree of divorce shall have recourse to the assistance and advice of a conciliatory body required under S. 106 of the LRA and get the certificate issued by such conciliatory body that it has failed to reconcile the parties. This is because the provisions in the LRA are designed to encourage reconciliation.
Section 53(2) of the LRA states that it is the duty of the Court to inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances is just and reasonable to do so, make a decree of divorce. In inquiring into such facts, the Court shall take into account of one or more of the facts provided in S. 54 of the LRA, namely (a) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (c) the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition; (d) the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition.
Matters Incidental to Matrimonial Proceedings
When granting a decree of divorce, the court shall have power to order the division between the parties of the matrimonial assets acquired by them during the marriage either by their , or by the sole effort of one party to the marriage.
Parties can agree on the division of matrimonial assets in any way they see fit. The assets that are usually the subject of division will be the matrimonial home, monies in bank accounts, cars, shares and any other matrimonial assets (if any).

However, it is important to note that the High Court will only grant an order for the division of assets when granting a decree of divorce. Therefore, parties should include all the assets that they wish to divide in their joint petition to prevent potential future disputes in relation to matrimonial assets that are not mentioned or pleaded. It is vital to note that the High Court does not have jurisdiction under the LRA to make an additional order for such asset after the decree for divorce has been granted as per the case of Manokaran a/l Subramaniam v Ranjid Kaur a/p Nata Singh [2009] 1 MLJ 21.

Under S. 77(1)(b) of the LRA, the Court has the power to order a man to pay maintenance to his former wife when granting or subsequent to the grant of a decree of divorce.
In relation to the support, care and custody of any child of the marriage, the Court is empowered to at any time by order place the custody of a child to his or her father or to his or her mother or, and where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, to any other relative of the child or to any association the objects of which include child welfare or to any other suitable person. 


*The above article is written by Ezra Toh, a Lawyer with Messrs Esther Ong Tengku Saiful & Sree. Kindly feel free to contact us should you have any query.

*You may contact us at:

Address: 51-1, Jalan USJ 10/1A, Taipan Triangle  47620 Subang Jaya, Selangor Darul Ehsan, Malaysia.
Tel        : 603-56379700
E-mail  : etscare@lawyermalaysia.com



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