Dissolution of a marriage by way of divorce by joint petition or by mutual consent is allowed under Section 52 Law Reform(Marriage and Divorce) Act 1976 (Act 164) and the jurisdiction to grant the divorce lies with the High Court. It is worth to pause that the Law Reform (Marriage and Divorce) Act 1976 (Act 164) is governing statutes regulating among other things marriages and divorces for non-muslims in Malaysia.
As long as the parties agreed to the divorce, one of them is domiciled in Malaysia (or is a citizen of Malaysia) and have been married for at least two (2) years at the time of the presentation of the Petition for divorce they are eligible to apply for a divorce by way of a joint petition under Section 52 Law Reform(Marriage and Divorce) Act 1976 (Act 164).
It is equally important to note that dissolution of the marriage by way of joint petition is out of the free will of the parties and hence it necessarily means that the parties will have to agree to the few key areas following the divorce (where applicable) such as custody of the children, maintenance of the wife and distribution of matrimonial properties.
In my view, as long as the arrangement between the parties in these key areas are legal, the Court is ready to grant the order as per the joint petition without going into the merits and/or the entitlement of the parties. For example, if the parties have agreed that the wife will get the custody of the son, the Court will not enquire whether the welfare of the son is best served with the wife having the custody of the son. The same will go to the maintenance of the son, if the husband agreed to pay the monthly maintenance of RM2,000.00 to the wife as maintenance of the son, the Court will not enquire whether the husband can afford to pay such sum and/or whether the son really need this amount. If the parties are unable to agree on the relevant key areas then they will not be able to obtain divorce by mutual consent. One of them will have to present a petition for divorce and the matter now has become a Contested Divorce.
The legal process for divorcing by joint petition will commence with:
A) The filing of cause papers.
The following cause papers will be drafted and filed in Court:-
- the Joint Petition (Petisyen Bersama) which is a prescribed legal document to be used in the commencement of divorce proceeding;
- the Affidavit in Support (Afidavit Sokongan) which is the statement of the parties made under oaths;
- Notice of Appointment of Solicitors (Notis Appointment of Solicitors); and
- if the situation warrants it a Certificate of Urgency (Perakuan Segera).
B) Hearing Date
Once the said cause papers are prepared and where applicable affirmed before the Commissioner for Oaths, the said cause papers will be filed in Court and after it was processed by the Court it will be extracted with a hearing date.
The parties will have to attend Court on the day the Joint Petition is fixed for hearing. In the event one of the party is unable to attend Court for the hearing, an affidavit explaining his or her inability to attend will have to be filed.
D) The granting of Decree Nisi/Decree Absolute.
In the event the said cause papers are in order the Court will grant the divorce by first pronouncing the decree nisi. It is pertinent to note that the Court at first instance will only grant a decree nisi where the marriage will only be dissolved after the expiry of three months from the decree nisi. It is only at the expiry of three months from the date of the decree nisi that the Court will grant the decree absolute where it is only then that the parties are considered legally divorce. Be it as it may, the Court does have the discretion to grant the decree nisi and made it absolute forthwith provided there is strong and/or good reason to do so for example if the parties have separated for a long period of time, the wife is pregnant with child of another, intend to leave the country in near future or already left the country.
Parties who had a change of mind after the pronouncement of the decree nisi but yet to be made absolute may apply for the same to be set aside by the Court.
There was a client who have asked me whether he can remarry his ex wife after the decree nisi was made absolute to which I answered yes. In this regard it is my humble opinion that there is nothing in the Law Reform(Marriage and Divorce) Act 1976 (Act 164) to prohibit a divorcee to remarry his or her former spouse.
E) Updating marital status with Jabatan Pendaftaran Malaysia.
After the decree nisi is made absolute it is advisable for the parties to have their marital status updated with Jabatan Pendaftaran Negara Putrajaya and the information on how to go about this can be found in their website.
F) The pros for divorce by joint petition
It is also important to note the following pros for dissolving the marriage by way of joint petition as opposed to a Contested Divorce:
- cost effective;
- faster disposal of the case, one can expect the whole episode from the date of filing of the Joint Petition to the decree nisi made absolute in less than four months time; and
- no allegations of fault need to surface in Court,