22 August, 2017
The phrase ‘joint petition’ or also commonly known as ‘uncontested divorce’ seems to be a rather incongruous pairing because when the word ‘divorce’ is brought up, it conjures images of a free-for-all war wherein everything from who takes custody of the children to who keeps the tea set is contested.
Joint petitions or uncontested divorces is governed by s. 52 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”). As explained by s. 52, an uncontested divorce takes place when both parties to the marriage agree that their marriage should be dissolved.
Even if the image of two adults tussling over the fancy china does not strictly apply here, s. 52 clearly states that a court may only make a decree of divorce upon being satisfied that both parties not only freely consent to this divorce petition but that they have also made the proper provisions for support of the wife and children.
This means that in the interest of mutuality (and a hassle-free divorce), divorces such as these typically necessitate couples to sit down and hash out the terms they are both agreeable to in the divorce papers. Such papers would then be filed by your lawyer in the Family Court division of the High Court.
Upon filing such papers, the length of each case differs as a hearing date is fixed at the judge’s discretion.
While an uncontested divorce may appear attractive to couples who are in agreement over their irreconcilable differences, there are several key points to note about the application of s. 52.
First, such petitions can only be filed after the expiration of two (2) years from the date of marriage. Second, this provision does not apply to Muslims and Muslim converts as such marriages fall under the purview of Syariah courts and s. 51 LRA 1976.
However, the restriction against petitions within the first two years of marriage may be circumvented in cases involving exceptional circumstances or hardship. s. 50 LRA 1976 provides that a judge may, in his discretion allow such a petition but any exceptional circumstances or hardship has be weighed alongside the interests of any child of the marriage and a reasonable possibility of reconciliation between the parties.
S.50 then has to be read hand in hand with s. 106 which provides that that no one shall petition for a divorce within the first two years of marriage unless the parties have been referred to a conciliatory body who certifies that reconciliation is impossible for the parties. This counselling requirement can be waived in several scenarios provided for under s. 106 but the general gist is that for petitions filed within two years, prior counselling sessions are required.
As to what constitutes exceptional circumstances or hardship, the case of Fay v. Fay [1982] 2 All ER 922 provides some guidance where the House of Lords opines that it is for the judge to decide in accordance with the facts at hand. However, exceptional circumstances or hardship is not limited to past occurrences but is also applicable to present and any future hardship that may occur.
At the end of the day, a divorce under s. 52 is not as clear cut as it seems as it was enacted with the curbing of ‘quickie’ divorces and the fostering of reconciliations in mind.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
