Can I file for divorce if my spouse doesn’t agree to it?
You can file for single/unilateral divorce even if your spouse doesn’t agree to it. However, your reason for single/unilateral divorce must be fulfilled ONE OF THE CIRCUMSTANCES below:-
(a) That one of the spouses has committed adultery;
(b) That one of the spouses has behaved in an unreasonable way to be expected to live together;
(c) That one of the spouses has deserted the other party for more than two (2) years; OR
(d) That both parties have separated or lived apart for more than two (2) years.
How long does it take for divorce in Malaysia?
It depends on whether it is a joint/mutual divorce OR single/unilateral divorce. For joint/mutual divorce, it takes approximately 3 months whereas for single/unilateral divorce, it may take at least 6 months depending on the complexity of the case.
Can I file for divorce before the expiration of two (2) years of my marriage?
The general rule is that no divorce can be filed to the Court unless as at the date of filing of the divorce, two (2) years has expired since the date of the marriage. However, the Court may allow it if you are able to prove one of exceptional circumstances or hardship suffered by you in the marriage.
Would I get divorce “automatically” if I am separated from my spouse more than two (2) years?
No, all divorce proceedings must go through the High Court in Malaysia. In other words, you have to file for divorce even if you have separated from your spouse more than two (2) years.
Do I have to personally attend to the Court for divorce?
Yes. For joint/mutual divorce, both husband and wife are required to attend to the Court once for the entire process. However, the attendance of either party can be exempted with reasonable excuse in some special circumstances. Whereas for single/unilateral divorce, you are required to attend to the Court at least one (1) time and above depending on the complexity of the case.
Would I be entitled to claim maintenance from my husband? If yes, how much would I be entitled to?
Yes, you are entitled to claim maintenance from your husband. In joint/mutual divorce, the amount of maintenance depends on the agreement by both parties. In other words, both parties are freely to decide on the amount of the maintenance payable to the wife. Whereas for single/unilateral divorce, the amount of maintenance usually depends on three (3) factors, ie, (1) means and needs of the spouse, (2) the status and living standard of the wife and (3) the earning capacity of the husband.
How about the division of the matrimonial assets? Is it true that husband and wife will get half (1/2) portion of the total matrimonial assets?
No, there is no fixed rule that both husband and wife will equally get half (1/2) portion of the total matrimonial assets upon divorce. Again, in joint/mutual divorce, the division of the matrimonial assets depends on the agreement by both parties. In other words, both parties are freely to decide on the division of the matrimonial assets after divorce. Whereas for single/unilateral divorce, the division of the matrimonial assets usually depends on three (3) factors, ie, (1) the extent of the contributions made by each party in terms of money, property or work in acquiring the matrimonial assets, (2) any debts owing by either party which were contracted for their joint benefit and (3) the needs of the minor children of the marriage.
How does the Court decide on the custody of the child?
In joint/mutual divorce, both husband and wife are freely to decide on the custody of the child. Whereas for single/unilateral divorce, the Court will decide the custody of the child based on the welfare and best interest of the child. Apart from that, the Court will also consider the wishes of the parent of the child and the wishes of the child if he or she is capable to express an independent opinion to the Court.
Is it true that mother will certainly have the custody of the child if the child is below seven (7) years old?
There is a presumption of law that a child who is below seven (7) years old to be with his/her mother. However, this presumption of law can be rebuttable (taken off) based on the welfare and best interest of the child.
What happens if my husband refuses to pay maintenance for wife and children after divorce?
There are numerous modes of actions can be taken by the wife:-
(a) Garnishing Proceeding – The wife can recover the outstanding maintenance by taking money from the husband’s account without the husband’s consent or approval after obtaining the Garnishing Order from the Court;
(b) Bankruptcy Proceeding – The wife can file bankruptcy proceeding against the husband in order to force him to pay the outstanding maintenance provided that the total outstanding amount is exceeding RM50,000.00 and above;
(c) Committal Proceeding – The wife can file committal proceeding against the husband for non-compliance of the Court Order as a result of which the husband would be jailed; or
(d) Judgment Debtor Summon – The wife can file Judgment Debtor Summon against the husband where the husband is required to attend to the Court and explain on his failure to pay for the maintenance.
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