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Divorce & the Frequently Asked Questions
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When dealing with divorce cases, very often we will be asked by our clients the following questions:-
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“Mr. Yeo, does 2 years of separation is compulsory before filing my divorce petition?”
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“Mr. Yeo, may I know it is compulsory for the husband to pay his wife alimony after divorce?”
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“Mr. Yeo, my child is less than 7 years old, it is compulsory for me to give out custody to my wife after divorce?”
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The above questions actually are the common myths about divorce. In our article today, we will answer and explain the laws applicable:
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MYTH 1: 2 years separation is a MUST condition BEFORE applying for divorce??
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First of all, one must understand that there are two types of Divorce Petitions in Malaysia. The first type is divorce by way of Joint Petition (with the consent of both parties), and the second type is divorce by way of Unilateral Petition (when one party does not give his/her consent to the divorce application).
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When both parties apply for a divorce together (by way of a Joint Petition), the law does not require both parties must be separated for more than 2 years.
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According to Section 50 of the Law Reform (Marriage and Divorce) Act 1976, as long as both parties have been married for more than 2 years, they can apply to the Court for divorce by way of Joint Petition.
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In the case of divorce by unilateral petition, different principles of law would be applied. The applicant must prove to the Court that the marriage of both parties has irretrievably broken down. One of the ways the applicant can show the breakdown of the marriage is that both parties have been separated for more than 2 years.
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In summary, 2 years separation is only relevant when one party is intending to apply for a divorce by way of Unilateral Petition. However, even if both parties have not been separated for more than 2 years, the applicant can still file a Unilateral Petition in the High Court of Malaya, if he/ she can show to the Court other factual conditions which lead to the breakdown of his/her marriage (such as adultery). Reference can be made to Section 54 of Law Reform (Marriage and Divorce) Act 1976.
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Myth 2 – Husband Must pay his wife alimony after divorce？？
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When watching TV dramas, we often see plots in which the court decreed the husband to pay high alimony to his wife.
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But in reality, due to the financial capabilities of both parties being quite equal in most of the cases, the wife applicant usually would not ask the husband to pay her alimony. At most, the husband is asked to pay the maintenance for their children until they reach the age of majority.
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Therefore, when applying divorce by way of Joint Petition, it is not necessary for the husband to pay his wife alimony. As long as both parties have reached a consensus on their terms for divorce which does not bear any detrimental effect to their children, usually the Court will allow their divorce application on the terms as agreed between parties.
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In the case of divorce by way of a Unilateral Petition, then it would depend on whether the wife applicant has asked from her husband alimony in the application papers. If the husband does not agree, then he must engage a lawyer to contest the unilateral petition.
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MYTH 3 – The custody of the child who is less than 7 years old must be given to the wife？？
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Similar to the answer above, in the case of divorce by Joint Petition, the custody of the child can be given to the husband or the wife as long as agreed between both parties.
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In the case of a unilateral petition, then it will be another story. When there is a dispute as to the child’s custody, the Court will presume that it is for the good of a child below the age of seven years to be with his or her mother. See Section 88(3) Law Reform (Marriage and Reform) Act 1976.
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However, this presumption is rebuttable, and ultimately the court will consider the undesirability of disturbing the life of a child by a change of custody.
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These are some information regarding divorce that we want to share with you today. If you have any inquiries about divorce, please do contact us: https://wa.link/q3kmv5
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If you want to know what are the differences between Joint Petition and Unilateral Petition For Divorce, you can read our article
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If you want to know more about Divorce by Joint Petition, you can read our article
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If you to know more about Divorce by Unilateral Petition, you can read our article.
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You can learn other legal information from our website：https://www.yeolaw.my/
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