Separating or divorcing

Civil divorce: the two-year wait

No petition for divorce can be presented to the court before 2 years have passed from the date of the marriage, unless a judge allows it on the ground of exceptional circumstances or hardship suffered by the person petitioning.

Law Reform (Marriage and Divorce) Act s 50(1), (2)

In deciding whether to allow it, the judge has regard to the interests of any child of the marriage and to whether there is a reasonable chance the two of you will reconcile within those 2 years.

Law Reform (Marriage and Divorce) Act s 50(2)

Civil divorce: showing the marriage has broken down

Either spouse can petition for divorce on the ground that the marriage has irretrievably broken down. The court inquires into the facts and, if satisfied that it is just and reasonable, makes a decree dissolving the marriage.

Law Reform (Marriage and Divorce) Act s 53

The court has regard to one or more of these facts:

• The other spouse has committed adultery, and the spouse petitioning finds it intolerable to live with them
• The other spouse has behaved in such a way that the spouse petitioning cannot reasonably be expected to live with them
• The other spouse has deserted the spouse petitioning for a continuous period of at least 2 years immediately before the petition
• The two of you have lived apart for a continuous period of at least 2 years immediately before the petition

Law Reform (Marriage and Divorce) Act s 54(1)

Civil divorce by mutual consent

If you both agree the marriage should end, you can present a joint petition after 2 years from the date of the marriage. The court can grant the divorce if it is satisfied that you both freely consent and that proper provision is made for the wife and for the support, care and custody of any children.

Law Reform (Marriage and Divorce) Act s 52

Civil divorce: trying reconciliation first

Subject to the exceptions below, and except for a petition under section 51 or section 52, you cannot petition for divorce until you have first referred the difficulty to a conciliatory body, such as a marriage tribunal, and it has certified that it failed to reconcile you.

Law Reform (Marriage and Divorce) Act s 106(1)

This is not required in some cases, including where you have been deserted and do not know where your spouse is, where your spouse lives abroad and is unlikely to come to Malaysia within 6 months after the petition, where your spouse was required to appear before the conciliatory body and wilfully failed to attend, or where the court is satisfied that exceptional circumstances make it impracticable.

Law Reform (Marriage and Divorce) Act s 106(1)

Civil divorce: assets and maintenance

When granting a divorce, the court can order the assets you both acquired during the marriage by your joint efforts to be divided between you, or sold and the proceeds divided.

Law Reform (Marriage and Divorce) Act s 76(1)

The court has regard to what each of you contributed in money, property or work, to the contribution of looking after the home or caring for the family, to debts either of you took on for your joint benefit, to the needs of any minor children and to how long the marriage lasted, and subject to those, it inclines towards dividing equally.

Law Reform (Marriage and Divorce) Act s 76(2)

The court can order a man to pay maintenance to his wife or former wife during the proceedings, or when granting or after granting a divorce. It can order a woman to pay maintenance to her husband or former husband where illness or injury leaves him wholly or partly unable to earn a living, and it is reasonable given her means.

Law Reform (Marriage and Divorce) Act s 77

If one spouse converts to Islam

Where one spouse has converted to Islam, either spouse can petition for divorce under section 51 or section 53, or both can petition under section 52. Section 50 does not apply to a petition where one spouse has converted.

Law Reform (Marriage and Divorce) Act s 51(1), (3)

Divorce under Islamic family law

This part follows the Islamic Family Law (Federal Territories) Act, which applies to all Muslims living in the Federal Territories and to Muslims resident there who live outside them.

Islamic Family Law (Federal Territories) Act s 4

Outside the Federal Territories, check the Islamic family law of your state.

Under the Federal Territories Act, the Court means the Syariah Subordinate Court or the Syariah High Court.

Islamic Family Law (Federal Territories) Act s 2

A husband or wife who wants a divorce applies to the Court with a statement that includes the reasons for wanting the divorce, the steps taken to reconcile, and any agreement or proposals on maintenance, the care and custody of the children and the division of assets.

Islamic Family Law (Federal Territories) Act s 47(1)

If the other spouse consents and the Court is satisfied after inquiry that the marriage has irretrievably broken down, the Court advises the husband to pronounce one talaq before the Court.

Islamic Family Law (Federal Territories) Act s 47(3)

If the other spouse does not consent, or reconciliation seems reasonably possible, the Court appoints a conciliatory committee, which tries to reconcile the two of you within 6 months or any longer period the Court allows.

Islamic Family Law (Federal Territories) Act s 47(5), (9)

The committee is not required where the spouse applying says they were deserted and do not know where the other is, where the other lives outside Peninsular Malaysia and is unlikely to be back within 6 months, where the other is imprisoned for 3 years or more, where the spouse applying says the other has an incurable mental illness, or where the Court finds exceptional circumstances make it impracticable.

Islamic Family Law (Federal Territories) Act s 47(15)

A person married under Hukum Syarak can also ask the Court to dissolve the marriage by fasakh on grounds that include these:

• The spouse's whereabouts have not been known for more than 1 year
• The wife's maintenance has been neglected or not provided for 3 months
• The spouse has been sentenced to imprisonment for 3 years or more (once the sentence is final and 1 year of it has been served)
• The spouse treats them with cruelty

Islamic Family Law (Federal Territories) Act s 52(1), (2)

When permitting a talaq or making an order of divorce, the Court can order the assets acquired during the marriage by joint efforts to be divided, having regard to each spouse's contributions, debts taken on for joint benefit and the needs of any minor children, and subject to those, it inclines towards dividing equally.

Islamic Family Law (Federal Territories) Act s 122(1), (2)