WILL YOU DIVORCE ME

Are you sure that all marriages are made in heaven?

Once upon a time, the relationship felt like paradise and today you feel paralysed because a marriage which was supposedly made in heaven turns out to be hell on earth. “Why did the marriage turn sour?” It might be for severe reasons like physical and/or emotional abuse, financial problems, infidelity, key differences in raising children or for silly reasons like “oh, she snores at night” or “he doesn’t put down the toilet seat”. When a couple has had enough of each other and there is no more spark in the relationship the solution they seek would be to get a divorce.

In Malaysia, there are two types of divorce petitions for Non-Muslims :-.

1. firstly, is divorce by mutual consent i.e Joint Petition (where both the couples mutually agree to file for divorce); and

2. secondly, is divorce without mutual consent i.e Unilateral Petition (where either one disagrees to the divorce).

For a divorce by mutual consent, both parties to the marriage can jointly file for a divorce mutually agreed by the parties to the marriage. However, in order to be eligible for a divorce by mutual consent, the parties to the marriage must have been married for a minimum of two (2) years from the date of registration of the marriage, when the petition for divorce is filed. Nonetheless, every general rule has an exception, therefore the parties shall seek the court’s approval if they have been married for less than two (2) years. The advantages of a divorce by mutual consent are that, both parties have the liberty to decide on crucial issues such as the maintenance for wife and children(s), custody and care of the children(s) and division of the matrimonial asset(s).

If either of the party to the marriage tears blood and disagrees to the divorce, the other party would be able to file for a divorce without mutual consent i.e unilateral petition. Such petition can be made on the basis that the marriage has broken down and the party would need to prove either one of the followings:-

1. either party to the marriage committed adultery;

2. either party to the marriage behaved in such a manner that the other party cannot reasonably be expected to live with him/her;

3. either party to the marriage has deserted the other party for a continuous period of at least two (2) years; or

4. the parties to the marriage have lived apart for a continuous period of at least two (2) years.

Unlike divorce by mutual consent, in a divorce without mutual consent, either party can make an application for the custodianship of the children(s). A child's best interests are of paramount importance in every matter concerning the child, therefore, the court would take into consideration the welfare of the child, wishes of the parents and wishes of the child if the child is eligible to express an independent opinion. Only then, the court will decide on the custodianship. It is also important to bear in mind that there is a rebuttable presumption that the custodianship of a child below 7 years would be given to the mother.

Similarly, on the right and interest over the matrimonial asset(s), in a divorce without mutual consent, either party can make an application to the court for the division of matrimonial asset(s).

As simple as it sounds, one cannot get a divorce overnight. The actual time frame needed for a divorce proceeding to be completed varies on a case to case basis. It depends on the date of hearing granted by the court, the complexity of the case and the time needed for both parties to reach a settlement (if it’s a divorce by mutual consent). Generally, a mutually consented divorce matter takes approximately three (3) to nine (9) months while a divorce without mutual consent requires more time as it is contested and would be depending on the complexity of the case and how the parties to the divorce proceeding cooperate to resolve this matter.

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