Family Law Services

“Divorce is not the end for these people, but the beginning of a new life.”

How to get divorce in Malaysia?

Single Petition

When your husband/wife disagrees on divorce in some areas, ie, distribution of joint assets.

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Joint Petition

When both of you can agree on all issues, ie, custody of children, division of your joint assets.

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Child Custody And Visitation Rights

Often, we get the question as to isn’t it always the case that the mother will get custody of the child?

Well, the answer to that is yes. However, this rule applies to children below the age of seven years. Nevertheless, this rule can be challenged should there be any concern of the father whereby the Court will consider the effects and circumstances in possibly disturbing the life and growth of the child with the changes of custody.

Disputes revolving around the custody of the child differ depending on the facts and stories in various households. Rest assured, both husband and wife can be represented by a legal representative in getting substantive legal advice from our team.

As you’ve seen in movies and dramas, the dispute and shouting often revolves around the custody of the child. This is no different in reality as the main concern and root cause of the dispute in divorce proceedings is centred on the child.

Firstly, a child is defined as a child of the marriage who is under the age of eighteen years. There is always the misconception in which many parents are still of the view that they are able to fight for the custody of their 20-year-old son / daughter. We then look at the meaning of custody, to which case laws have shown that 'custody' is the right to determine the upbringing of the child and care, as well as to have control and care of the child.

Under s. 88(1) LRA 1976, the custody of the child is subject to the discretion of the Court whereby the Court may place the child in the custody of his or her father / mother. However, this begs the question on what happens if the child is not suited to live with either his or her father / mother? This is where the Court will look into the wider picture in assessing if the child can be placed in the custody of his/her relative or of any welfare association or suitable individuals.

The welfare of the child will always be of utmost importance to which the Court shall consider the wishes of the parents of the child and the child himself or herself if he or she is of an age to express her wishes or views.

'Will I ever be able to see my kid after the divorce?'

This is one of many concerns and inquiries we received from husband and wives before deciding if the divorce should happen.

Visitation rights are awarded to the parent who does not have custody of their child. This could vary to several days and / or hours per week or month depending on the circumstances of the case.

Visitation rights can always be discussed between the parents whereby our team has vast experience in bridging the gap and opening the mindset of the parent who is reluctant to provide any visitation rights to the non-custodial parent.

We always believe in equal rights and access to the child. However, this would be subjected to the various backgrounds of the matter. Visitation rights must be afforded and managed carefully should a parent be known to have a drinking disorder, or is physically abusive in character or misuse of drugs. In light of safeguarding the interest of the child, a detailed visitation schedule may even be drawn up before the Court.

The child’s best interest is what our team strives for as the general upbringing of the child is of utmost importance irrespective of the differences the parents may have between them.

Standard Legal Process for Child Custody And Visitation Rights

1. Child Custody and Visitation can be dealt with in an Interim Application or under the Divorce Proceedings altogether.

2. Notice of Application and Originating Summons to be filed simultaneously for an interim application. The matter will then be set for hearing, written and oral submissions to be filed. Decision of the Court and extraction of Court Order.

Distribution of Marital Assets

The assumption of a husband or wife that they will surely and confidently obtain a certain share of assets or property upon divorce is ever present and embedded in the mindset of the said husband or wife.

Many do not understand the complexity and legal principles involved in the distribution of matrimonial assets. A matrimonial asset is an asset acquired during the course of the marriage, NOT BEFORE subject to certain exceptions as discussed below.

The governing legal framework on the division of matrimonial assets for non-muslim divorces is provided under s.76 LRA 1976, to which the Malaysian Courts possess wide discretionary powers in dividing the matrimonial assets by looking at the contribution, whether the assets in question were acquired jointly or by sole effort of one party and other external factors depending on the facts of the matter itself.

It is clear under s. 76(2), that the Court always are inclined in favor of the equal division of the assets between the spouses to which the court will look at the extent of contributions made by each party; the debts owing by either party which were made for their joint benefit; and the needs of the minor children (if any).

There is the prevailing stigma where only the wives will seek to claim the husband’s assets, however, this is not always the case. Divorce proceedings can certainly be a messy and highly bitter affair between the husband and wife in which both sides will try their best in obtaining the best possible outcome for their own benefit. This is where our team will come into the picture in assisting and providing a comprehensive breakdown of every detail of the asset which you seek upon the conclusion of divorce proceedings.

There are three types of matrimonial assets in divorce proceedings in Malaysia, namely:

i. Assets acquired by Joint Efforts

This is where spouses have made equal contribution and payment in acquiring an asset whereby each spouse is entitled to claim and apportion accordingly. The Court may order on the equal division of assets or the sale of the assets, in which the sale proceeds shall be divided equally.

ii. Assets acquired by sole effort of one party

This category of assets is acquired solely by one spouse to which the other spouse bears no financial contribution to the said asset.

We often get asked if the house is under the sole name of the husband or wife, would the opposing spouse be entitled to the share of the house? The answer to that is yes, whereby the spouse is required to prove that he or she has made substantial indirect financial contribution towards the household expenses. The Courts will also look in regard to the contribution to the welfare of the family, i.e. the spouse be directly involved in the upbringing and care of the child.

iii. Assets owned before marriage and substantial improvement

For the purposes of this section, these are assets obtained by one spouse during the marriage but have been substantially improved during the marriage by the other party or by joint efforts, notwithstanding it be financial contribution or indirect contribution such as the care and upbringing of the family.

The husband or wife has to show that there have been substantial improvements made in the asset, for example, substantial renovation or maintenance of the home which contributed to the increase in market price of the home. Contribution would also have to be proven by the spouse in showing that perhaps utilities bills or maintenance of the home were paid by him or her throughout the course of their marriage.

Standard Legal Process for Distribution of Marital Assets

1. Fact gathering and compilation of relevant documents.

2. Necessary actions such as entering caveat etc might be necessary.

3. Injunction may be filed to prevent disposition of assets

Maintenance To Wife And Children

Maintenance is the most material and relevant area during the course of divorce proceedings.

The rationale behind providing maintenance to the wife and children is not punitive in nature against the husband. It should be noted that the wife is ever entitled to a form of maintenance from her husband regardless of how small of a sum and / or if she is being maintained by a relative or parents.

Maintenance may be given periodically or even a lump sum payment subject to the facts and circumstances of the case. This may be appropriate should the wife choose to absolutely have a clean break with the husband after the divorce.

Does this mean that the wife can and should claim for a ridiculous amount / sum of maintenance from the husband? This is not the case. Under s. 78 LRA 1976, the Courts will always look at the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife, whilst considering the degree of responsibility of each party for the breakdown of the marriage.

Negotiation on the terms for maintenance may be negotiated between the spouses to accommodate the needs and wishes of the spouses. For example, maintenance terms may also be agreed between spouses that maintenance will cease should the wife remarry or pass away. In relation to children, maintenance may be negotiated to cease when the children have attained a majority age of 18 years old.

An appropriate and realistic expectation is to be managed in obtaining maintenance, in which our team is ever ready to provide you advice in managing this matter during the course of your divorce proceedings.

Annulment Of Marriage

What is Annulment of marriage?

Annulment of marriage is governed by Section 67 of the Law Reform (Marriage and Divorce) Act 1976. Annulment is nullification of marriage or a legal procedure to cancel a marriage. Either party to a marriage can apply for an annulment of the marriage. There are two types of marriages which can be annulled: void and voidable marriages.

Requirement:

1. The marriage must be registered or deemed to be registered under the Act;

2. The marriage must be monogamous; and

3. The parties to the marriage must reside in Malaysia at the time of the commencement of the proceedings.

For void marriages, a marriage will be treated as having not existed at all after a decree a nullity is ordered by the court. Examples of where marriages will be void are if:

• Either party was already married to another person at the time of the marriage, the prior marriage was still in force and the other person was still living at the time of the new marriage;

• Parties to a marriage are not respectively male and female; or

• Parties to a marriage are within the prohibited degrees of relationship such as parent-child or brother-sister

For voidable marriages, a marriage will still be treated as having existed until the date a decree of nullity is ordered by the court. Examples of where marriages will be voidable are if:

• The marriage has not been consummated due to the incapacity or refusal of a party to consummate it;

• Either party to a marriage did not consent to the marriage or the marriage was entered into under duress, mistake or unsoundness of mind;

• At the time of marriage, a party was suffering from a venereal disease in a communicable form; or

• At the time of marriage, the wife was pregnant by some person other than her husband.

Judicial Separation

What is Judicial Separation?

Judicial Separation is a form of legal separation which allows a husband and a wife to be separated while remaining legally married. A legal separation is granted by a court order and allows the husband and wife to cease cohabitation without dissolving the marriage. A decree of Judicial Separation is a need for some people who do not wish to terminate the marriage due to religious objection and may require some form of recognition of the breakdown of the marriage, since Judicial Separation does not terminate the marriage as it only relieves the parties of the duty to cohabit.

The following provisions will be included in a decree of Judicial Separation: -

• Which spouse remains in the matrimonial home;

• Child custody and care;

• Division of assets; and

• Financial relief

The provision on Judicial Separation is Section 64(1) of the Law Reform (Marriage and Divorce) Act 1976 which states that a petition for Judicial Separation may be presented to the court by either party to a marriage on the ground and circumstances set out in Section 54 which shall comprise of the following:

1. your spouse has committed adultery and you cannot bear living with him/her; or

2. your spouse has behaved in such a way that you cannot be expected to live with him/her; or

3. you and your spouse have lived apart continuously for at least 2 years; or

4. your spouse has left you for a continuous period of at least 2 years.

If the separated parties reconcile and wish to cohabitate again, an application can be made to Court to set aside the decree of Judicial Separation.

Pre-divorce Advisory

Pre-divorce advisory is the process that helps couples decide if it is time to get a divorced. Aided by our experienced family lawyer, both couples or either couple can meet us for consultation to decide if divorce is the answer or not, and what are the steps and consequences that follow that critical decision.

The ultimate goal of Pre-divorce advisory is to find the best solutions for the couples before they decide to divorce. If the couples decide to divorce, we will find the best way for the well-being of the children and make the best settlement for distribution of the properties.