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Date
04 Apr 2023
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Divorce via Joint Petition: An Overview

Introduction

Divorce can be a complicated and emotionally taxing process. However, in Malaysia, couples who wish to divorce can choose to file a joint petition for divorce, which is a simpler and more cost-effective method of ending their marriage. In this article, we will explain what a joint divorce petition is, how it works, and what you need to know if you are considering this option.

What is a joint divorce petition?

A joint divorce petition is a legal document filed by both parties to a marriage who wish to end their union. By filing a joint petition, both parties agree to the terms of the divorce and do not contest any issues related to the separation, such as custody, division of assets, and maintenance.

How does a joint divorce petition work?

To file a joint divorce petition, both parties must agree on the terms of the divorce. This includes issues such as custody of children, division of assets and liabilities, and spousal maintenance. Once the terms are agreed upon, the parties can prepare and file the joint petition with the relevant court.

The court will then review the petition and schedule a hearing date, which is usually within two to three months of filing. Both parties must attend the hearing, where the judge will ask a few questions to confirm that they understand the terms of the divorce and that the decision to divorce is mutual.

If the judge is satisfied, he or she will grant the divorce, and the parties will receive a divorce certificate. The whole process usually takes about three to four months.

What are the advantages of a joint divorce petition?

There are several advantages to filing a joint divorce petition in Malaysia, including:

  1. Simplicity: A joint petition is a straightforward process and requires less time and resources than a contested divorce.
  2. Cost-effectiveness: Since both parties agree on the terms of the divorce, legal fees are typically lower than that of a contested divorce.
  3. Privacy: A joint petition allows the parties to maintain their privacy, as they do not have to disclose details of their marriage or the reasons for the divorce in court.
  4. Less stress: A joint petition can reduce the emotional stress of the divorce process, as both parties are in agreement and do not have to battle in court.

What are the requirements for a joint divorce petition?

To file a joint divorce petition in Malaysia, both parties must meet the following requirements:

  1. The marriage must have broken down irretrievably.
  2. Both parties must be in agreement to the terms of the divorce, including custody, division of assets and liabilities, and spousal maintenance.
  3. There must be no pending court cases or disputes between the parties.
  4. Parties must be domiciled in Malaysia.1 The domicile of a person is determined by the person’s “place of residence or ordinary habitation, a house or home, the place where one has his permanent residence, to which, if absent, he has the intention of returning”.2 Under the common law, a wife’s domicile will follow her husband’s domicile. For example, if the wife is a Malaysian and the husband’s domicile is Singapore, the domicile of the wife will be Singapore.
  5. Both parties must have been married for at least two years before filing the joint petition.
  6. The parties must have lived separately for at least two years, or one year if they have both agreed to the divorce.

Matrimonial Assets

Parties can agree on the division of matrimonial assets in any way they see fit. The assets that are usually the subject of division will be the matrimonial home, monies in bank accounts, cars, shares and any other matrimonial assets (if any).

However, it is important to note that the High Court will only grant an order for the division of assets when granting a decree of divorce.3 Therefore, parties should include all the assets that they wish to divide in their joint petition to prevent potential future disputes in relation to matrimonial assets that are not mentioned or pleaded. It is vital to note that the High Court does not have jurisdiction under the Law Reform (Marriage and Divorce) Act 1976 to make an additional order for such assets after the decree for divorce has been granted.4

Conclusion

A joint divorce petition is an excellent option for couples in Malaysia who wish to end their marriage quickly, cost-effectively, and amicably. If you are considering this option, it is important to understand the requirements and seek legal advice if necessary. A qualified lawyer can guide you through the process and ensure that your rights and interests are protected.

Article by Darryl Lim (Pupil-in-Chambers)
Edited by XXX (Partner)
04 April 2023

 

1 Section 48 LRA

2 James Sloan v Sarala Devi [2010] 9 MLJ 670

3 Section 76 Law Reform (Marriage and Divorce) Act 1976

4 Manokaran a/l Subramaniam v Ranjid Kaur a/p Nata Singh [2009] 1 MLJ 21