Many couples who want a divorce may not agree on the terms of the divorce. That is why they choose to file a single petition for divorce.
This article will explain single petition of divorce in Malaysia/unilateral application, including the requirements for filing and the related divorce procedures
Apply for divorce unilaterally or jointly
According to the Malaysian divorce law and judicial system, there are two ways to get divorce, one is to apply for divorce jointly, and the other is to apply for divorce unilaterally (or single petition of divorce). Under the premise that you and your spouse have reached an agreement on the terms and conditions for ending the marriage, you can file for divorce together.
On the other hand, when only one spouse files, this method is known as filing for divorce ex parte/unilaterally. This method is suitable for situations where one spouse does not agree to divorce, and one spouse can apply for divorce without the consent of the other spouse.
In addition, if the other party does not agree to the unilateral divorce application; whether it is a different divorce or does not agree to the terms, such as custody, property division, and alimony, one spouse can also apply for a unilateral divorce.
Before deciding to file for divorce jointly or unilaterally, couples should consider whether they can agree on the following divorce terms.
If they can agree on all the terms, then they can file for divorce together. If they cannot agree on all the terms, they can file for divorce unilaterally. Terms are explained further below.
Arrangements and Terms
Custody and Child Support
In a joint divorce petition, both spouses can discuss and agree on arrangements for the children. This includes custody, day-to-day care of the child, and control (the right to make decisions about the child's education and other matters related to the child).
The spouses may also discuss and agree on visitation rights for the other parent who is being deprived of custody of the children, as well as the amount and frequency of child support.
If the spouses cannot agree on arrangements for the children, the court will decide the arrangements for the children in a single petition for divorce. The court mainly considers the child's welfare and the child's wishes when determining child custody.
There is a rebuttable presumption that custody of a child under 7 years of age should be given to the mother, although the presumption is rebuttable.
Spousal support
Alimony is the financial obligation of one spouse to continue to support the other financially after the divorce. As spouses, especially wives, you should discuss the amount of alimony that should be paid after the split. Alimony is usually paid by the husband to the wife.
This can help provide some cash flow and maintain a lifestyle after the split. If the couple cannot agree on the amount of alimony, the court will consider a variety of factors to determine the amount and payment period of alimony according to the law.
These factors include the income of both parties, their needs, and the responsibility for the breakdown of the marriage.
Property Distribution
A spouse may have purchased some property such as a house during the marriage. In a joint divorce petition, they can discuss and mutually agree on how to divide their property.
If the spouses cannot agree on the division of marital property, in a unilateral application for divorce, these factors will affect the court's decision to divide the property, such as:
duration of marriage
Spousal contribution to the purchase of assets: either individually or jointly to purchase the property and to meet household expenses
Contribution where the other party did not contribute money to purchase the asset but took care of the family and home
The needs of minor children
Debts owed by either spouse for the common benefit
Conditions for unilateral divorce in Malaysia
The marriage meets the eligibility requirements;
Submit the marriage to the Malaysian Government Divorce Department (Jabatan Pendaftaran Negara, JPN) for conciliation and obtain a non-concillation certificate (when concillation fails);
Prove that the marriage has irretrievably broken down on at least one of the grounds. These requirements are explained in detail below.
Marriage Requirements
Before starting the process, it is important to find out if the marriage qualifies. The qualifying requirements are:
The spouses must be non-Muslim/Islamic.
The marriage must be registered in Malaysia - under Section 48(2)(a) of the Law Reform (Marriage and Divorce) Act 1976 (LRA). If the marriage is foreign, then the foreign marriage must first be registered in Malaysia. We can help you register.
The marriage lasted more than two years - unless exceptions can be made in special circumstances or hardship.
Submit the marriage to JPN for concillation and obtain a non-concillation certificate
Spouses must submit their marriage to the National Registration Department, Jabatan Pendaftaran Negara (JPN) for concillation. JPN will arrange some counselling sessions to mediate disputes and marriage counselling.
This process may take 3 to 4 months to complete. This process is also known as the 'JPN Divorce Process/Government Divorce Application'. Relevant JPN divorce forms can be found on the JPN website
If concillation fails after the meetings, the JPN must issue a Certificate of Non-Mediation (Form JPN.KC28 or JPN.KC29) proving that they are unable to concillation the marriage. This letter will be used when applying to the court for divorce in the future.
Grounds for unilateral request for divorce
Under Malaysian divorce law, applicants must prove one of several grounds that the marriage has irretrievably broken down. These grounds include:
Adultery: One spouse has committed adultery and the other spouse cannot bear to live with the spouse.
Unreasonable behavior: One spouse has behaved in a way that makes it impossible for the other spouse to reasonably live with the spouse. Examples include physical or mental abuse, drug addiction or excessive gambling.
Abandonment: One spouse has abandoned the other spouse for at least two years before the petition.
Separation: The couple has been living apart for at least two years before the petition. One
Spouse has converted to Islam
马来西亚单方面申请离婚法庭程序
After meeting the conditions for unilateral divorce in Malaysia, the applicant can petition the court. The court process is explained below:
Step 1: Prepare the necessary documents
Before commencing court proceedings, applicants should collect and prepare all necessary documents. These include:
marriage certificate
ID cards or passports of both spouses
Child’s birth certificate (if there are children)
Details of any previous court family proceedings between spouses
A detailed statement of the applicant’s case
JPN’s certificate of non-concillation
Details of assets acquired during the marriage
It is recommended to hire a lawyer to complete this process to ensure that all necessary documents comply with Malaysian law and to make the unilateral divorce application process smoother.
Step 2: Make an application to the court
Once all necessary documents are in place, the applicant must apply to the High Court of Malaya by submitting the petition with supporting documents. It is important to ensure that all information on your application is correct and complete, as any errors may slow down or complicate the process.
Step 3: Send legal documents to the other spouse
After filing an application with the court, the applicant should serve the proceedings on the other spouse. After the documents are served, the other party has a few weeks to submit his response, called an "Answer to Petition."
Step 4: Attend court and obtain a temporary divorce order (decree nisi)
Both spouses need to attend a court hearing on the matter. At the hearing, the judge will review documents and evidence from both spouses.
If the judge is satisfied with the application, he can issue a temporary divorce order (decree nisi) with other provisions for the dissolution of the marriage, such as spousal and child support, division of marital property, and custody of children.
Decree nisi is a temporary order from the court which does not yet dissolve the marriage.
Step 5: Obtain the final court order, decree absolute
After obtaining the decree nisi, the spouse must wait three months before applying for a decree absolute (Malaysian divorce certificate). This is the final order to dissolve a marriage. During this 3-month waiting period and before the divorce is official, the couple can still reconcile.
Once a divorce certificate is given, the decree absolute will state that the marriage is dissolved and the spouses are free to remarry and perform any wedding ceremony.
Step 6: Update “divorced” marital status in JPN
After the court approves the Malaysian divorce certificate, the court will notify JPN of the divorce to update the marital status. However, updates may take several months.
As part of our service, we help our clients update their "divorced" and marital status at the government divorce department so that their marital status can be updated faster, especially when they plan to remarry or leave the country. If you need any help updating your marital status, please contact us.
After the divorce process is complete, here are a few things you may want to pay attention to. This includes complying with court orders regarding child custody, financial arrangements and property division.
How long does a unilateral divorce take?
Generally speaking, filing for divorce unilaterally can take 9 months or longer. This depends on when JPN issues a certificate of non-settlement and the court’s arrangements for the hearing.
A joint divorce petition may take 1 to 3 months to complete without obtaining any proof of non-reconciliation from JPN
How much does a unilateral divorce cost?
The cost of a unilateral divorce can vary depending on several factors, especially the complexity of the matter and the individual circumstances and details. In some cases, some spouses may wish to apply to the court for temporary custody of the children during the court hearing. This will result in increased costs.
It is important to discuss the estimated costs with your lawyer to avoid misunderstandings later. The costs are usually higher than the costs of a joint petition. Costs may include:
Attorney Fees - This is the professional fee charged by the lawyer for providing you with legal advice, preparing documents and representing you in court;
Expenses - This is the costs incurred by the law firm for the client, such as court filing fees, travel expenses, postage, photocopying costs, etc.
Comparison of unilateral and Joint Divorce
Both types of divorce have their advantages and disadvantages. The advantage of filing for divorce unilaterally is that one party can request a divorce even if the other party does not agree.
Additionally, a spouse may be able to obtain a more favorable order from the court than if she had requested a joint divorce (depending on each case).
The disadvantage of filing for an unilateral divorce is that it requires more time and expense. Filing for divorce unilaterally can take nine months or more to complete. The fees are also relatively high.
As for joint divorce petitions, the advantages are that they are short and cost-effective. Joint divorce petitions usually take 1 to 3 months to complete and are less expensive. The disadvantage is that both spouses must agree to the divorce and also agree to the terms of the divorce.
Hiring a Divorce Lawyer
Typically, each spouse will hire their own attorney. Before hiring an attorney or law firm to represent you in your divorce case, you can look for these qualities in an attorney. These qualities include:
Reputation: Investigate the attorney's reputation among past clients. A good attorney will have good reviews from past clients and will be able to provide you with the best possible solution. This may indicate that they are knowledgeable and have experience handling divorce cases.
Communication: Choose an attorney who is quick and easy to get in touch with. An attorney who listens, understands your concerns, and keeps you updated throughout the process will make your experience smoother.
Empathy: This process can be a difficult one. Therefore, choose an attorney who understands your situation and genuinely wants to help you.
Conclusion
The unilateral divorce process can be complicated. But with the right information, planning, and the right attorney, you can have a smooth process.
If you need any details or assistance, you can contact us. Our attorneys will help you through the process
