JOINT PETITION: AN OVERVIEW OF UNCONTESTED DIVORCE IN MALAYSIA

A.       Introduction

In Malaysia, the joint petition for divorce represents an efficient and mutually agreeable method for ending a marriage. This process allows spouses to amicably settle all related terms, ensuring a smoother transition through this significant life change. This article examines the fundamental requirements for filing a joint petition and provides a detailed overview of the streamlined court procedure. Additionally, it highlights the numerous advantages of this approach compared to a single petition, including reduced costs, expedited resolution, and a more cooperative atmosphere, offering a more practical option for those who have already decided to part ways.

B.       Requirements for a Joint Petition

1.       Duration of Marriage:

The couple must typically have been married for at least two (2) years.[1]

2.       Registration of Marriage:

The marriage must be registered or recognized under the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) or another law that provides for monogamous marriages.[2]

3.       Domicile:

Both parties must be domiciled in Malaysia.[3]

4.       Mutual Agreement:

Both parties must agree on all terms related to maintenance, division of matrimonial assets, and arrangements for children[4].

C.       Required Documents

The following documents must be filed for a joint petition:

(a)    Joint Petition;

(b)    Affidavit verifying the Joint Petition;

(c)    Statement as to Arrangements for Children (if applicable);

(d)    Decree Nisi & Order (filed after the hearing); and

(e)    Decree Absolute (usually three months after the Decree Nisi)[5]

D.       Key Advantages of a Joint Petition

A comparison of the key advantages of a joint petition compared to a single petition are summarised in the table below: -

E.       Court Process

1.       Filing and Hearing:

Once the joint petition is filed, a hearing will be scheduled by the Court within approximately 1 - 2 months.

2.       Attendance:

Both spouses are usually required to attend the hearing, though exceptions can be made for valid reasons supported by an affidavit.

3.       Court Proceedings:

During the hearing, the terms of the joint petition are presented to the Judge, who confirms both parties’ understanding and agreement. If satisfied, the judge grants the Order and Decree Nisi.

4.       Finalization:

The Decree Nisi becomes absolute after three months, finalizing the divorce. This period can be shortened for good reasons[6].

F.        Spousal Maintenance (Alimony)

The Court will ensure “proper provision is made for the wife” before granting a divorce[7]. This often means the husband agrees to pay maintenance, though the wife may choose to waive this right, if she does not want it. Maintenance can be a lump sum or periodic payments and ends upon the death of either spouse, remarriage of the receiving spouse, or the receiving spouse living in adultery[8].

G.      Arrangements for Children

If the couple has children[9] from the marriage, the joint petition must include terms regarding:

(a) Custody               : Whether one parent has sole custody, or both share joint custody.

(b) Care & Control   : Which parent will have daily care of the child.

(c) Access                 : Visitation rights for the non-custodial parent, which can be general or specific.

Custody and access orders typically cease when the child turns eighteen (18). Parents are responsible for child maintenance regardless of custody arrangements, covering living expenses, education, medical costs, and insurance. Maintenance orders usually expire when the child reaches eighteen (18), unless the child has a disability or is pursuing further education.

H.      Division of Matrimonial Assets

The division of assets such as the matrimonial home, bank accounts, vehicles, and shares must be included in the joint petition. The High Court will only order the division of assets upon granting the divorce decree, and it cannot make additional orders for asset division after the decree is granted.

I.         Conclusion

A joint petition for divorce in Malaysia offers a streamlined, cost-effective, and amicable alternative to a single petition. By enabling both spouses to mutually agree on all terms, including maintenance, child custody, and asset division, it ensures a smoother and less contentious transition. Understanding the requirements and process of a joint petition can significantly benefit those seeking an efficient and cooperative resolution to their marital dissolution.

* Please note that this article is not intended as legal advice for any particular case. Since the facts and circumstances of each case vary, specific legal advice is recommended. You are welcome to reach out to us for a free legal consultation tailored to your situation.

If you have any queries, please contact the author, Ng Jack Ming (njm@jclegal.com.my) or partner, Yap Jia Cheng (yjc@jclegal.com.my).