In Malaysia, the legal process for divorce depends on whether the parties are Muslims or non-Muslims. Malaysia operates under a dual legal system, civil law and syariah law.

• Civil law, which applies to non-Muslims;
• Syariah law, which governs Muslims.

Legal Basis and Eligibility to File for Divorce Under Civil Law in Malaysia

Under the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976), only marriages registered under civil law fall under the jurisdiction of the civil courts. A couple must typically be married for at least two (2) years before either party can file for divorce. However, an exception may be made if the petitioner can prove that they have suffered exceptional hardship during the marriage.

Types of Civil Divorce Petitions

There are two main ways a civil divorce can be filed:

1. Joint Petition

This is when both spouses agree to end the marriage and have reached mutual agreement on key issues such as child custody, division of assets, and maintenance. A joint petition is typically faster, less expensive, and less emotionally taxing.

2. Single Petition

This is filed by one party when the other does not consent to the divorce or when there is disagreement over terms. The process involves more court involvement, legal documentation, and potentially, a longer resolution time.

Steps in the Civil Divorce Process

Step 1: Filing the Petition

The process begins with one or both parties filing a petition for divorce in the Family Court. The petition must include reasons for the breakdown of the marriage and proposed arrangements for children, if any.

Step 2: Mediation (if required)

The court may direct the couple to attend mediation to attempt reconciliation or to settle disputes amicably. This is especially encouraged in cases involving children.

Step 3: Court Hearing

If mediation is unsuccessful or not required, the court proceeds to a hearing. Here, both parties present evidence and statements supporting their case. The judge will assess whether the marriage has irretrievably broken down.

Step 4: Issuance of Decree Nisi

If the court is satisfied that all legal and procedural requirements are met, it will grant a decree nisi. This is a provisional order that indicates the court sees no reason to deny the divorce. However, the marriage is not yet legally dissolved at this stage. The couple remains married until the next step is completed.

Step 5: Applying for the Decree Nisi Absolute

After a mandatory three month waiting period, the petitioner may apply to the court to make the decree nisi absolute. Once the decree nisi absolute is granted, the divorce is legally complete, and the marriage is officially dissolved. The decree nisi absolute will be the document that serves as the final proof of the divorce.

Joint Petition vs Single Petition of Divorce Under Civil Law in Malaysia

In Malaysia, non-Muslim divorce is governed by the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976). When a married couple decides to end their marriage under civil law, they may do so either together through a Joint Petition, or individually through a Single Petition.

Joint Petition

What is a Joint Petition for Divorce?

A Joint Petition is when both spouses agree that the marriage has irretrievably broken down, and on all related matters, including:

• Division of property
• Custody and access to children
• Maintenance (spouse/child)
• Other ancillary reliefs

Key Features for Joint Petition

• Mutual agreement between parties
• Simpler and faster process
• Less costly
• Minimal court appearances
• Often resolved within 3 to 6 months

Procedure for Joint Petition for Divorce Under Civil Law in Malaysia

1. The divorce process begins with both spouses agreeing to end the marriage and engaging a lawyer together to ensure that the paperwork is correctly prepared and that their mutual agreement is legally enforceable.
2. The lawyer will prepare a Joint Petition for Divorce, which includes all agreed-upon terms such as child custody, maintenance, division of matrimonial assets, and any other relevant matters. Both spouses must sign the petition. Once completed, the petition is filed at the Family Court.
3. After the petition is filed, the court sets a hearing date. Both parties must attend this hearing. The judge will review the petition to ensure that the marriage has irretrievably broken down and that the terms of the agreement are fair.
4. If the judge is satisfied that all legal requirements have been met and the agreement is just and reasonable, a preliminary order called a decree nisi will be granted.
5. After three (3) months, either party may apply to the court for a decree nisi absolute, which is the final court order that officially ends the marriage. Once granted, both parties are legally recognised as divorced.

Single Petition

What is a Single Petition for Divorce?

A Single Petition is filed by only one spouse, usually because the other spouse does not agree to divorce, or they disagree on matters like custody or maintenance.

Key Features for Single Petition

• Filed unilaterally by one spouse
• May involve court hearings, witnesses, and evidence
• Can take 6 months to over a year or more, depending on disputes
• Requires proving breakdown of marriage under Section 54 LRA 1976
  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Separation for at least 2 years

Procedure for Single Petition for Divorce in Malaysia

1. The process begins when one spouse (called the petitioner) files a divorce petition at the Family Court, stating the grounds for divorce under Section 54 of the LRA 1976. Once filed, the petition must be properly served on the other spouse (called the respondent).
2. After receiving the petition, the respondent may choose to contest the divorce by filing a reply, especially if they disagree with the grounds stated or the proposed arrangements for custody, maintenance, or property division.
3. In some cases, the Family Court may refer both parties to mediation in an attempt to resolve disputes amicably without going to trial. However, if mediation fails, the case will proceed to full hearing.
4. If no agreement is reached, the case proceeds to trial. The court will hear both sides and assess the evidence.
5. After evaluating all evidence and submissions, the court will decide whether the petitioner has successfully proven that the marriage has irretrievably broken down. If satisfied, the judge will issue a decree nisi.
6. Once three (3) months have passed from the date the decree nisi was issued, the petitioner can apply to make the decree nisi absolute. This final order legally dissolves the marriage. Only after the decree nisi absolute is granted are both parties considered officially divorced.

Navigating a civil divorce in Malaysia—whether through a joint petition or a single petition—can be emotionally and legally complex. Understanding your rights under the Law Reform (Marriage and Divorce) Act 1976 (LRA 1976) is essential to ensure a fair and smooth process. Whether you’re facing challenges in child custody, property division, or spousal maintenance, professional legal guidance can make all the difference.

If you’re considering divorce in Malaysia, don’t face it alone. Our experienced legal team is here to support and guide you every step of the way. Contact us today for a confidential consultation—we’re ready to help you protect your interests and start a new chapter with confidence.