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Law Reform (Marriage & Divorce) Act of Malaysia (1976, as amended 2006) – 6: Divorce

PART VI

DIVORCE

Principles of law to be applied

47. Subject to the provisions contained in this Part, the court shall in all suits and proceedings hereunder act and give relief on principles which in the opinion of the court are, as nearly as may be, conformable to the principles on which the High Court of Justice in England acts and gives relief in matrimonial proceedings.

Extent of power to grant relief

48. (1) Nothing in this Act shall authorize the court to make any decree of divorce except—

  1. (a)  where the marriage has been registered or deemed to be registered under this Act; or
  2. (b)  where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and
  3. (c)  where the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia.

(2) Nothing in this Act shall authorize the court to make any decree of judicial separation except—

  1. (a)  where the marriage has been registered or deemed to be registered under this Act; or
  2. (b)  where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and
  3. (c)  where both the parties to the marriage reside in Malaysia at the time of the commencement of proceedings.

Additional jurisdiction in proceedings by a wife

49. (1) Notwithstanding anything to the contrary in paragraph 48(1)(c), the court shall have jurisdiction to entertain proceedings by a wife under this Part, although the husband is not domiciled or resident in Malaysia if—

  1. (a)  the wife has been deserted by the husband, or the husband has been deported from Malaysia under any law for the time being in force relating to the deportation of persons, and the husband was before the desertion or deportation domiciled in Malaysia; or
  2. (b)  the wife is resident in Malaysia and has been ordinarily resident in Malaysia for a period of two years immediately preceding the commencement of the proceedings.

(2) In any proceedings in which the High Court has jurisdiction by virtue of this section, the issues shall be determined in accordance with the law which would be applicable thereto if the parties were domiciled or resident in Malaysia.

(3) In this section references to deportation from Malaysia shall be construed as including banishment or expulsion under any written law.

Restriction on petitions within two years of marriage

50. (1) Subject to subsection (2), no petition for divorce shall be presented to the court before the expiration of the period of two years from the date of the marriage (hereafter in this section referred to as “the specified period”).

(2) A Judge of the court may, on an application made to him, allow the presentation of a petition for divorce within the specified period on the ground that the case is one of exceptional circumstances or hardship suffered by the petitioner; but in determining the application the Judge shall have regard to the interests of any child of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties during the specified period.

(3) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters which occurred before the expiration of the specified period.

Dissolution on ground of conversion to Islam

51. (1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce:

Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion.

(2) The Court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any conditions to the decree of the dissolution as it thinks fit.

(3) Section 50 shall not apply to any petition for divorce under this section.

Dissolution by mutual consent

52. If husband and wife mutually agree that their marriage should be dissolved they may after the expiration of two years from the date of their marriage present a joint petition accordingly and the court may, if it thinks fit, make a decree of divorce on being satisfied that both parties freely consent, and that proper provision is made for the wife and for the support, care and custody of the children, if any, of the marriage, and may attach such conditions to the decree of divorce as it thinks fit.

Breakdown of marriage to be sole ground for divorce

53. (1) Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down.

(2) The court hearing such petition shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution.

Proof of breakdown

54. (1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say:

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.

(2) In make a decree the court shall consider all the circumstances, including the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved and it may make a decree nisi subject to such terms and conditions as the court may think fit to attach, but if it should appear to the court that in all the circumstances it would be wrong to dissolve the marriage it shall dismiss the petition.

Provisions designed to encourage reconciliation

55. (1) Provision may be made by rules of court for requiring that before the presentation of a petition for divorce the petitioner shall have recourse to the assistance and advice of such persons or bodies as may be made available for the purpose of effecting a reconciliation between parties to a marriage who have become estranged.

(2) If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation. The power conferred by the foregoing provision is additional to any other power of the court to adjourn proceedings.

Rules to provide for agreements to be referred to court

56. Provisions may be made by rules of court for enabling the parties to a marriage, or either of them, on application made either considering whether it would be just and reasonable to before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks fit.

Contents of divorce petition

57. (1) Every petition for divorce shall contain—

  1. (a)  particulars of the marriage between the parties and the names, ages and sex of the children, if any, of the marriage;
  2. (b)  particulars of the facts giving the court jurisdiction;
  3. (c)  particulars of any previous matrimonial proceedingsbetween the parties;
  4. (d)  a statement of the principal allegations which it will be sought to prove as evidence of the breakdown of the marriage;
  5. (e)  the terms of any agreement regarding maintenance of the wife or dependent party and the children, if any, of the marriage, or the division of any assets acquired through the joint efforts of the parties or the sole effort of one party or where no such agreement has been reached, the petitioner’s proposals; and
  6. (f)  particulars of the relief sought.

(2) Every petition for a divorce shall state what steps had been taken to effect a reconciliation.

Damages for adultery may be claimed against co-respondent

58. (1) On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.

(2) A petition under subsection (1) may include a prayer that the co-respondent be condemned in damages in respect of the alleged adultery.

(3) Where damages have been claimed against a co-respondent—

  1. (a)  if, after the close of the evidence for the petitioner, the court is of the opinion that there is not sufficient evidence against the co-respondent to justify requiring him or her to reply, the co-respondent shall be discharged from the proceedings; or
  2. (b)  if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, the court may award the petitioner such damages as it may think fit, but so that the award shall not include any exemplary or punitive element.

Powers of court on claim to damages for adultery

59. (1) The court may award damages against a co-respondent notwithstanding that the petition against the respondent is dismissed or adjourned.

(2) The court shall have power, when awarding damages, to direct that such damages or any part thereof, be vested in trustees upon trust to pay the income or capital thereof for the benefit of the minor children, if any, of the marriage or, where the petitioner is required to pay maintenance to the respondent, in or towards the payment of such maintenance, and subject thereto in trust for the petitioner.

(3) Whenever in any petition presented by a husband the alleged adultery has been established against the co-respondent, the court may order the co-respondent to pay the whole or any part of the costs of the proceedings; provided that no such order for costs shall be made if the respondent was at the time of the adultery living apart from the husband and living the life of a prostitute or if the co-respondent had not at the time of the adultery reason to believe the respondent to be a married woman.

Hearing of petition

60. If in any proceedings for divorce the respondent alleges against the petitioner and proves any such fact as is mentioned in section 54 the court may give the respondent the relief to which the respondent would have been entitled if the respondent had presented a petition seeking that relief.

Decree nisi and proceedings thereafter

61. (1) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant unless the court by general or special order from time to time fixes a shorter period.

(2) Where a decree nisi of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court and on that application the court may—

  1. (a)  notwithstanding the provisions of the last foregoing subsection, make the decree absolute;
  2. (b)  rescind the decree nisi;
  3. (c)  require further inquiry; or
  4. (d)  otherwise deal with the case as it thinks fit.

Remarriage of divorced persons

62. Where a decree of divorce has been made absolute and either—

  1. (a)  there is no right of appeal against the decree absolute;
  2. (b)  the time for appealing against the decree absolute has expired without an appeal having been brought; or
  3. (c)  an appeal against the decree absolute has been dismissed,

either party to the former marriage may marry again.

Proceedings for decree nisi of presumption of death and divorce

63. (1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court, if satisfied that such reasonable grounds exist, may make a decree nisi of presumption of death and of divorce.

(2) In any such proceedings the fact that for a period of seven years upwards the other party to the marriage has been continually absent from the petitioner, and the petitioner has no reason to believe that the other party has been living within that time, shall be evidence that he or she is dead until the contrary is proved.

(3) Sections 61 and 62 shall apply to a petition and a decree under this section as they apply to a petition for divorce and a decree of divorce respectively.

Judicial Separation

64. (1) A petition for judicial separation may be presented to the court by either party to a marriage on the ground and circumstances set out in section 54 and that section shall, with the necessary modifications, apply in relation to such a petition as they apply in relation to a petition for divorce.

(2) Where a court grants a decree of judicial separation it shall no longer be obligatory for the petitioner to cohabit with the respondent.

(3) The court may, on an application by petition of the spouse against whom a decree of judicial separation has been made and on being satisfied that the allegations in the petition are true, rescind the decree at any time on the ground that it was obtained in the absence of the applicant or, if desertion was the ground of the decree, that there was reasonable cause for the alleged desertion.

Judicial separation no bar to petition for divorce

65. (1) A person shall not be prevented from presenting a petition for divorce, or the court from pronouncing a decree of divorce, by reason only that the petitioner has at any time been granted a judicial separation upon the same or substantially the same facts as those proved in support of the petition for divorce.

(2) On any such petition for divorce, the court may treat the decree of judicial separation as sufficient proof of the adultery, desertion, or other ground on which it was granted, but the court shall not pronounce a decree of divorce without receiving evidence from the petitioner.

(3) For the purposes of any such petition for divorce a period of desertion immediately preceding the institution of proceedings for a decree of judicial separation shall, if the parties have not resumed cohabitation and the decree has been continuously in force since the granting thereof, be deemed immediately to precede the presentation of the petition for divorce.

Property of wife after judicial separation

66. (1) The property of a wife who at the time of her death is judicially separated from her husband shall, in case she dies intestate, go as it would have gone if her husband had been then dead.

(2) Where, upon any such judicial separation, alimony has been decreed or ordered to be paid to the wife and the same is not duly paid by the husband he shall be liable for necessaries supplied for her use.

Nullity of Marriage

Extent of power to grant relief

67. Nothing in this Act shall authorize the court to make any decree of nullity of marriage except—

  1. (a)  where the marriage has been registered or deemed to be registered under this Act; or
  2. (b)  where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and
  3. (c)  where both the parties to the marriage reside in Malaysia at the time of the commencement of the proceedings.

Petition for nullity of marriage

68. Any husband or wife may present a petition to the court praying for a decree of nullity in respect of his or her marriage.

Grounds on which a marriage is void

69. A marriage which takes place after the appointed date shall be void if—

  1. (a)  at the time of the marriage either party was already lawfully married and the former husband or wife of such party was living at the time of the marriage and such former marriage was then in force;
  2. (b)  a male person marries under eighteen years of age or a female person who is above sixteen years but under eighteen years marries without a special licence granted by the Chief Minister under section 10;
  3. (c)  the parties are with in the prohibited degrees of relationship unless the Chief Minister grants a special licence under subsection 11(6); or
  4. (d)  the parties are not respectively male and female.

Grounds on which a marriage is voidable

70. A marriage which takes place after the appointed date shall be voidable on the following grounds only, that is to say:

  1. (a)  that the marriage has not been consummated owing to the incapacity of either party to consummate it;
  2. (b)  that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
  3. (c)  that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
  4. (d)  that at the time of the marriage either party, though capable of giving a valid consent, was (whether continuously or intermittently) a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 [Ord. 31 of 1952] of such a kind or to such an extent as to be unfit for marriage;
  5. (e)  that at the time of the marriage the respondent was suffering from veneral disease in a communicable form;
  6. (f)  that at the time of the marriage the respondent was pregnant by some person other than the petitioner.

Bars to relief where marriage is voidable

71. (1) The court shall not grant a decree of nullity on any of the grounds mentioned in section 70 if the respondent satisfied the court—

  1. (a)  that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and
  2. (b)  that it would be unjust to the respondent to grant the decree.

(2) Without prejudice to subsection (1), the court shall not grant a decree of nullity on the grounds mentioned in paragraph 70(e) or (f) unless it is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged.

(3) Subsection (1) replaces, in relation to the grounds mentioned in section 70, any rule of law whereby a decree may be refused by reason of approbation, ratification or lack of sincerity on the part of the petitioner or on similar grounds.

Marriages governed by foreign law or celebrated abroad under Malaysian law

72. Where, apart from this Act, any matter affecting the validity of a marriage would fall to be determined (in accordance with the rules of Private International Law) by reference to the law of a country outside Malaysia neither section 69 nor section 70 shall—

  1. (a)  preclude the determination of that matter as aforesaid; or
  2. (b)  require the application to the marriage of the grounds there mentioned except so far as applicable in accordance with those rules.

Effect of decree of nullity in case of voidable marriage

73. (1) If the court finds that the petitioner’s case has been proved it shall pronounce a decree of nullity.

(2) A decree of nullity granted after the appointed date on the ground that marriage is voidable shall operate to annul the marriage only as respects any time after the coming into operation of the decree, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.

Collusion not to be bar to relief in cases of nullity

74. Collusion shall cease to be a bar to the granting of a decree of nullity.

Legitimacy where nullity decree made

75. (1) Where a decree of nullity is granted in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled shall be deemed to be their legitimate child.

(2) Subject to the provisions of this section, the child of a void marriage shall be treated as the legitimate child of his parent if, at the time of the solemnization of the marriage, both or either of the parties reasonably believed that the marriage was valid.

(3) Subsection (2) applies—

(a) only where the father of the child was domiciled in Malaysia at the time of the marriage; and

(b) in so far as it affects the devolution of any property only to children born after the appointed date.

(4) This section does not affect any rights under the intestacy of a person who died before the appointed date, and does not affect the operation or construction of any disposition coming into operation before the appointed date.

(5) Notwithstanding section 6 of the Legitimacy Act 1961 all children who are deemed legitimate at birth by virtue of the provisions of this section shall be so treated in all respects and not as persons legitimated at the date of the marriage or of the Legitimacy Act 1961 [Act 60] as provided therein.

(6) Any person claiming otherwise than in a petition for a declaration of nullity of the relevant marriage that a child shall be treated as the legitimate child of his parents by virtue of subsection (3) may apply for a decree to that effect and section 5 of the Legitimacy Act 1961 shall apply mutatis mutandis to such petition but the court shall not make such a decree unless satisfied by the petitioner that both or either of the parties to the marriage reasonably believed that the marriage was valid as not being in any way contrary to section 71.

(7) In this section the following expressions have the meaning hereby assigned to them, that is to say—

“void marriage” means a marriage declared to be void under sections 6, 10, 11, subsection 22(4) or section 72;

“disposition” has the same meaning as in the Legitimacy Act 1961,

and any reference in this section to property is a reference to any real or personal property, or any interest in such property, which is limited by any disposition (whether subject to a preceding limitation or charge or not) in such a way as to devolve as nearly as the law permits, whether or not the property or some interest in the property may in some event become severed from it.

Next: Chapter 7 – Matters Incidental to Matrimonial Proceedings