Both have decided to end the marriage and wish to part ways peacefully. How do you proceed to apply for a divorce in Malaysia? You will need to file a Joint Divorce Petition. (“Please take note that the writings below is only applicable to non-muslim couples in Malaysia who have jointly agreed to apply for a divorce”)
In order to file a Joint Petition, both parties need to be agreeable on the following terms:
1. Child’s Custody
- Both parents need to determine whether they will share custody or one of them will have full custody of the child/children. If one parent takes full custody, the other parent may have access and visitation rights over the child/children.
2. Child’s Maintenance
- How much will the father provides for the child’s maintenance? The usual arrangement is for the father to make payment to the mother’s bank account every other month. This will last until the child finish his/her first degree.
- What if the couple’s arrangement is for the child to be placed with the father? Both will then discuss whether the mother will be making payment to the father.
- It is not a compulsory requirement for either parent to be making payment of child’s maintenance to the other parent. Both can freely decide that the other parent need not pay any child maintenance. However, it is highly advisable for both to come to a fair and just arrangement. This is to ensure the child will continue to receive love and support from both parents no matter what.
3. Insurance, education and/or medical bill of the children
- The payment of child maintenance does not usually encompasses payment for the child’s insurance, education and medical bill. This is because the payment made for child maintenance is intended to cover the child’s day to day expenses such as clothes, food, toys etc. As such, both parents will need to decide whether they will share responsibility or only one parent will be making payment for the child’s insurance, education and medical bill.
4. Wife’s Maintenance
- Will the husband will be making any payment of alimony to the wife? As both have agreed for an amicable settlement, it is highly advisable for both party to be reasonable in coming to an agreed amount to avoid unnecessary complication which may further delay the divorce process.
5. Property Distribution
- There are couples who agree not to claim anything from each other, there are those who agree to distribute based on market value and there are also who wishes to sell off the marital assets and to subsequently distribute the proceeds of sell equally. At the end, both need to be agreeable to the distribution of marital assets.
How To Apply? Divorce Process and Procedure
To apply for a divorce in Malaysia by Joint Petition is simple and quite straightforward. The procedure of a Joint Petition are as follows:
1. Negotiation of the Terms
Once both have come to a decision that the marriage is over, the next discussion which must take place will be about the terms of the divorce as explained above. If both are still on speaking terms, then both will need to sit down and discuss properly on the terms without any further arguments.
However, a law firm of your own choosing may be appointed to carry out the negotiations if both are not on speaking terms. Each party may even appoint their own lawyer. This way, both lawyers representing the husband and wife will be proposing and counter proposing each other for a fair and just arrangement.
2. Preparing Court Documents
Couples will usually appoint a law firm of their own choosing to prepare the court documents. However, it is possible to proceed without appointing any lawyer as long as the matter is uncontested. Otherwise, it is highly advisable to appoint a law firm and obtain proper representation. If couples choose not to be represented, both will then need to prepare the following court documents:
- Joint Divorce Petition;
- Affidavit in Support of the Petition;
- Statement in Regards to the Children (if any); and
- Statement in Regards to the Marital Assets (if any)
If eligible, you may apply for help from the legal aid centre. Link to Legal Aid Centre: https://www.kllac.com/
If couples choose to appoint a law firm to handle the divorce proceeding, the appointed law firm will then be responsible in preparing the above documents. Drafting by lawyers usually take 3 working days to 1 week depending on the complexity of the case.
3. Signing & Filing of Court Documents
Once the document is ready, both husband and wife will then have to sign the court documents at a Commissioner for Oaths’ office for affirmation. Once the documents have been signed by both husband and wife, the appointed law firm will then file the documents to court. If unrepresented, you will then need to file the documents to court.
4. Hearing day
After the court documents have been filed to court, the court officer will then fix a Hearing date where both parties will be required to attend court. During this pandemic time, it is not uncommon for courts to fix an online hearing. If the matter is set to be heard online, both husband and wife’s attendance at court may be exempted and only the appointed lawyer will be required to attend the online hearing.
On the hearing day, the appointed lawyer will submit the facts of the case to the judge and apply for the divorce. If all court documents have been filed accordingly and all the facts is in order, the court will then give the divorce order.
Applying for a divorce in Malaysia
Although the process and procedure above may look complicated, a joint divorce petition is actually simple and straightforward as long as both are agreeable for a mutual and amicable part of ways. To put it simply, the procedure can be summarized as follows:
- Negotiations of the terms;
- Drafting and preparation of court documents;
- Signing by both parties;
- Hearing day; and
- Obtaining the decree nisi (divorce order) and decree nisi absolute.