When we come to discuss divorce matter in Malaysia, the governing provision we refer to is the Law Reform (Marriage and Divorce) Act 1976. The grounds of dissolution of a marriage may be a dissolution by mutual consent, breakdown of marriage or presumption of death and divorce.
First and foremost, we will come across a divorce petition which it may be a single petition or a mutual petition/joint petition. In the event where both spouses are not able to reach a consensus, then either party can file a single petition by serving a written petition to his/her spouse without consent of the other party. Either spouse can make application for maintenance considering all factors which include the needs of wife and children (if any), the living standard of parties during marriage and the income of parties.
However, if the husband and wife mutually agreed to a dissolution of marriage, then they may present a mutual petition and the court may, if it thinks fit, make a decree of divorce on being satisfied that both parties freely consent, and that proper provision is made for the wife and for the support, care and custody of the children, and may attach such conditions to the decree of divorce. Therefore, it saves more time and cost as it is not going to be a long procedure determining the assets division, care and custody of child, maintenance fee and etc.
(a) Wife maintenance fee
The court may order the former husband to pay maintenance to the wife during the course of matrimonial proceedings. In determining the amount of maintenance fee, the court shall assess on the means and needs of the parties. However, there is no order of lump sum in lieu of maintenance, only monthly maintenance for spouse is permitted. The right of any divorced person to receive maintenance from his/her former spouse shall cease when he/she remarried or living in adultery with any other person.
(b) Matrimonial assets
Matrimonial property under the Malaysian Family Law refers to the property that is jointly acquired by the husband and wife during the marriage. Under the present law, in dividing the matrimonial property upon divorce, the court will look at the parties' contribution towards the property, whether it is parties’ joint effort or sole effort.
Section 76(2) of the Law Reform (Marriage and Divorce) Act 1976 provides three considerations that must be took into account when the court orders division of matrimonial assets, namely the contribution made by each party towards the property; any debts owing by either party which were contracted for their joint benefit; and the needs of the minor children. There is no certain percentage of the property which a spouse will get upon divorce, the court will exercise its discretion to give any order which it deems fit.
(c) Care and custody of child
In deciding whether a child should be placed in whose custody is a paramount consideration, thus the court must always ask himself whether who has parental responsibility. For an instance, the court must decide whether who can make decisions benefiting the child. Once a party is granted custody of the child, then the other party will be granted the access of the child. Generally, wife will be awarded the custody of child while the husband has the primary obligation to support the wife and child.
However, the child’s father can rebut it by proving that the mother is unfit. Where both parties cannot agree on issues relating to the custody of child, the court will decide in the best interest of the child. Besides, a non-custodial parent must be given opportunity to visit the child after giving the quantum of access by the custodial parent.
(d) Maintenance of child
It is the parents’ duty to maintain or contribute to the maintenance of their child no matter the child is in whose custody. The parents must provide the child with accommodation, food, clothing and education as may be reasonable having regard to his/her means. The support of the maintenance of child last until the child reach the age of 18 or until the child finishes studies in the university.