Single Divorce Petition: The Prerequisites for a Divorce under Civil Law

Say that you have caught your spouse committing adultery behind your back and you have proof to substantiate a breakdown of marriage under Section 54 of the Law Reform (Marriage and Divorce) Act 1967 (“the Act”).

Now, you want to put an end to the marriage unilaterally. How can you initiate it?

Requirements to bring a divorce claim in Malaysia

Before you bring a divorce action in Malaysia, there are a few requirements that need to be satisfied:

• The marriage must be registered or considered to be registered under the law of Malaysia or a foreign law, which provides for monogamous marriage;
• Both parties must live in Malaysia or consider Malaysia to be their permanent home;
• Parties must be married for at least 2 years, except for exceptional cases.

Grounds to initiate a single divorce petition

Section 53 of the Act provides that in order for a party to the marriage may petition for a divorce on the ground that the marriage has irretrievable broken down.

The question is, how do you know that a marriage has irretrievably broken down?

Section 54 of the Act states the following:

(1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say: Law Reform (Marriage and Divorce) 37

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.

If your case falls under one of the “proofs of breakdown” under Section 54 of the Act, you now have a ground to initiate a divorce under a single petition.

Reference to a conciliatory body

Section 106 of the Act provides that:

No person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties:

The same Section had provided the exceptions where the parties are not required to attend a conciliation:

1. where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse;
2. where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition;
3. where the respondent has been required to appear before a conciliatory body and has wilfully failed to attend;
4. where the respondent is imprisoned for a term of five years or more;
5. where the petitioner alleges that the respondent is suffering from incurable mental illness; or
6. where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable.

All of the exceptions are pretty clear except for the last one.

Exceptional circumstances which make reference to a conciliatory body impracticable

In the case of C & A [1998] 6 MLJ 222, the parties had been separated for over 20 years and they had not been in contact with one another for that whole period. Due to that, the High Court in that case was satisfied that the case falls under the exceptional circumstances and it is impracticable to refer them to the conciliatory body. Kamalanathan Ratnam J elaborated that the very fact that both parties have lived apart with no contact with one another for well over 20 years is prima facie evidence that each of them is entitled to a dissolution of marriage.

Meanwhile, in the case of Khoo Kay Peng v Pauline Chai Siew Phin [2015] MLJU 158, the High Court was satisfied that due to the fact that both parties do not want to be in the marriage anymore, then it’s impracticable to refer them to a conciliatory body.

If your case does not fall under any one of the exceptions, then you must head to the nearest office of National Registry Department and fill in the KC14 form for an application for referral to the marriage tribunal.

Once the tribunal is satisfied that the marriage cannot be reconciled, they will issue a tribunal certificate. This certificate must be exhibited in your divorce petition.

Documents do you need to prepare

First of all, before you approach a lawyer, please ensure that you have all of the following documents as these are the documents which will need to be exhibited in your petition:

• A copy of the marriage certificate
• A copy of birth certificate(s) of child(ren), if any
• A copy of the Sale and Purchase Agreement of jointly owned property;
• A copy of certificate from marriage tribunal or conciliatory body.

Conclusion

If your matter has fully satisfied the above requirements, you may now seek a divorce lawyer to draft your petition and to file them. For a single petition, it usually takes 9 to 12 months for the divorce to be fully finalized.

Seri can't describe herself—she is an eclectic mix of complication and simplicity wrapped in the form of a petite hijabi lawyer. She does have unusually colourful vocabulary though, but only when most people aren't listening. Much.

• Apportionment for Inheritors in Islam [Part 2] - December 15, 2020
• Apportionment for Inheritors in Islam [Part 1] - December 11, 2020
• Impediments to Inheritance in Islam - December 3, 2020