4 May, 2017
The choice to end a troubled marriage can leave parties hurt and vulnerable. However, it does not need to be a messy affair. A joint petition/uncontested divorce is usually pursued when both parties to a marriage can amicably establish an agreement on the terms of their divorce. This would be in terms of the division of assets, liabilities, custody of children, and ancillary matters pertaining to the maintenance of children.
An uncontested divorce is the quickest way to terminate a marriage in Malaysia and most parties often choose this option.
Section 52 of Law Reform (Marriage and Divorce) Act 1976 [Act 164]
52. Dissolution by mutual consent.
If husband and wife mutually agree that their marriage should be dissolved they may after the expiration of two years from the date of their marriage present a joint petition accordingly 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, if any, of the marriage, and may attach such conditions to the decree of divorce as it thinks fit.
However, where the relationship between the parties have become bitter and hostile, then the parties involved may be unable to come to an agreement on the terms of their termination of marriage. Hence an application for a divorce shall be made by way of a single petition. The dissolution of a marriage is a matter of grave consequence affecting the entire family and the court shall inquire into the facts leading to the breakdown of the marriage before granting a decree of divorce.
Section 53 of Law Reform (Marriage and Divorce) Act 1976 [Act 164]
53. Breakdown of marriage to be sole ground for divorce
Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.
Section 53(2) of the LRA states that it is the duty of the Court to inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances is just and reasonable to do so, make a decree of divorce.
In inquiring into such facts, the Court shall take into account of one or more of the facts provided in Section 54 of the LRA ie:
- the petitioner (ie the spouse filing for divorce) finds it intolerable to live with the respondent (the other spouse) as the respondent has committed adultery;
- the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition; and/or
- the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition.
In general, a single petition/contested divorce can be costly and prolonged if matters are complex and cannot be resolved quickly.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
