What should I be careful about when giving evidence in a divorce or custody case?

Family cases are personal, and giving evidence about your marriage or your children can be stressful. This article covers civil divorce and custody proceedings under the Law Reform (Marriage and Divorce) Act 1976, which applies to non-Muslims. Syariah Court proceedings follow different laws and procedures. The aim is to help you understand the process so you can give clear, truthful evidence.

How is evidence given in a divorce or custody case?

Much of the evidence in family proceedings is given by affidavit: a written statement that you swear or affirm is true. Applications for interim custody, maintenance and similar orders are often decided on affidavits alone. Where facts are seriously disputed, for example at the trial of a contested petition or of custody and asset issues, the court may hear oral evidence, and you can be cross-examined on your affidavits.

Because an affidavit is sworn, it carries the same weight of truth as evidence from the witness box. Knowingly stating something false in an affidavit can amount to giving false evidence under the Penal Code.

What does the court focus on in custody?

Under section 88 of the Act, the court's paramount consideration is the welfare of the child. The court also considers the wishes of the parents and, where the child is old enough to express an independent opinion, the child's own wishes.

This shapes good evidence. The court wants to know:

• who has been looking after the child day to day;
• the child's schooling, health, routine and relationships;
• each parent's living arrangements and working hours;
• practical plans for care, access and contact with the other parent.

Evidence that is mostly criticism of your former spouse, with little about the child, rarely helps the court.

What is a welfare report?

In some custody cases, the court may ask a social welfare officer from the Department of Social Welfare (JKM) to prepare a report, which can involve interviews and home visits. If this happens, be honest and cooperative, keep appointments, and do not coach your child on what to say. The officer's report is one piece of evidence; the judge decides.

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Why does honest disclosure of assets matter?

In claims for division of matrimonial assets and maintenance, each party usually has to set out their income, property, savings, debts and expenses. Expect to be asked about:

• bank statements, EPF, shares and property;
• business income and money moved shortly before or after separation;
• monthly expenses for yourself and the children.

Hiding assets or understating income is a common and serious mistake. Documents can be obtained through the court process, and a party shown to have concealed assets risks losing credibility on every other issue, as well as possible legal consequences.

What should I prepare?

• Re-read every affidavit you have filed, and the other side's affidavits, before the hearing.
• Collect documents: school reports, medical records, payslips, bank statements, property documents.
• Note corrections: if something in your affidavit is wrong or out of date, tell your lawyer so it can be corrected properly.
• Prepare a simple timeline of key events: marriage, separation, changes in care arrangements.
• Arrange childcare for hearing days; children are generally not brought into court unless the court directs.

Common mistakes

• Exaggerating the other parent's faults or using emotional language instead of facts.
• Leaving out assets, income or debts.
• Involving the children in the dispute, or showing them affidavits.
• Posting about the case or the other parent on social media.
• Contradicting your own affidavit because you did not re-read it.
• Recording or "collecting evidence" on the children in ways that cause them distress. Discuss any concerns with your lawyer first.

Example

Madam Lee sought custody of her two children in Johor Bahru. Her first draft affidavit focused on her husband's behaviour during the marriage. Her lawyer asked her to describe instead the children's routine: school runs, homework, medical appointments and weekend activities. In cross-examination she was asked about her working hours, and she answered honestly that she worked late twice a week and explained her arrangements with her mother. The judge could weigh clear, truthful evidence about the children.

When to speak to a lawyer

Speak to a lawyer before you file or reply to any affidavit, and before any hearing at which you may be cross-examined. If there are safety concerns, raise them immediately. If you or your child are in immediate danger, call 999; Talian Kasih 15999 (KPWKM/JKM) also provides support. Chris & Partners, led by Dr Chee Hui Bing, handles civil family litigation. Contact us; every case depends on its facts.

Frequently asked questions

Will I definitely have to speak in court?

Not always. Many applications are decided on affidavits. If facts are disputed at trial, you may be cross-examined.

Will my child have to give evidence?

Generally children are not called as witnesses in custody cases. The court may consider an older child's views in other ways, such as through a welfare officer or a judge's interview, depending on the case.

Can I correct a mistake in my affidavit?

Yes. Tell your lawyer as soon as possible; a correction is usually made by a further affidavit or at the hearing.

Does it matter who caused the breakdown of the marriage?

For custody, the focus is the child's welfare. Conduct may be relevant only in so far as it affects the child.

What if my former spouse lies in their affidavit?

Tell your lawyer and point to documents that show the true position. The court decides whom to believe; reply with facts, not insults.

Does this apply to Muslim divorces?

No. Muslim family matters are dealt with by the Syariah Courts under state Islamic family law.

Sources & fact check

Legal points in this article were checked against the primary sources below. The law can change; this is general information, not legal advice.

1. Law Reform (Marriage and Divorce) Act 1976 (Act 164), including sections 83, 88, 93, 95 and 96, AGC Laws of Malaysia
2. Evidence Act 1950 (Act 56), including section 114A, AGC Laws of Malaysia
3. Penal Code (Act 574), Attorney General's Chambers Laws of Malaysia
4. Department of Social Welfare Malaysia (Jabatan Kebajikan Masyarakat)
5. Government of Malaysia portal, Talian Kasih 15999 (KPWKM / JKM)
6. Office of the Chief Registrar, Federal Court of Malaysia (Judiciary portal)

Fact-checked on 17 Oct 2026