The Steps in Divorce Proceedings by a Single Party in Malaysia
If you and your spouse are Malaysian citizens or have lived in the country for quite some time (and are planning to live there permanently), then you need to know a couple of things before you can file for divorce. First, you need to get a divorce attorney because they will not only represent you, but they will also do their best to help you with the proceedings (and win the case).
Second, the Malaysian High Court can only grant judicial separation between both parties if the marriage is actually registered under the LRA 1976. This supposes that your marriage is contracted under the law and that neither party has committed adultery.
Now, there are two major types of divorce in Malaysia: one that is through mutual consent (aka Joint Petition) and one that is petitioned by only a single party (or a single petition).
Under Section 52, if the divorce is initiated by both parties, meaning that they have mutually agreed to file for divorce, then they can file a joint petition for the dissolution of their marriage. The divorce attorney or solicitors of both parties will be given a “Form 3” which is a form that is required if there is a joint petition for divorce. This form will be signed by both attorneys.
After the court sees that both parties have agreed to the divorce, then it will grant a decree nisi to the parties. If there are no objections after three months, then the decision to separate will be final and absolute.
Assuming that only one party wants to file for divorce, then the marriage will have to be considered “irretrievably broken” first by the High Court. First, the proceedings will reference matrimonial difficulty to conciliatory body that is pursuant to Section 106 of the LRA 1976. If the marriage is deemed irreparable, then the body will issue a certificate that will affirm this.
Then, an acknowledgment form will be given to the one who filed for the divorce and it will be signed by their solicitor on their behalf. In the event that the other party wishes to defend, then they should provide a statement that will tell the high court that they wish to defend the marriage.
Should the other party wish to defend the case, they will be given 8 days to defend their cause, up to a maximum of 21 days. Once the other camp has received the notice, they will be given 2 weeks to reply. Whether or not the party that was served the notice replies to it after given enough time, the registrar for trial will determine the time and place of the trial proceedings after reviewing all of the information that is presented to the office.
Once the proceedings begin, the court will have the power when it comes to deciding who receives the custody of the child, as well as the division of different properties and assets. This will be carefully studied in court and will only be awarded to parties that deserve to receive them.
After the trials, the court may grant a decree nisi, essentially giving both parties a total of three months to object. If no objection occurs, then the decision that was made in court will be made absolute.