By Nor Adilah binti Mohamad Puzi
If all else fails and you wish to end to your marriage unilaterally, how do you initiate it?
Section 53 of the Law Reform (Marriage and Divorce) Act 1967 (“the Act”) provides that you may petition for a divorce on the ground that the marriage has irretrievably broken down. The proof of breakdown is further highlighted in Section 54 of the Act as below:
that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent
that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
E.g.: drunkard or abuser where the Court will take into account the character and conduct of the petitioner as well as the respondent in their evidence:-
That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. Four elements must be proved which are:
The actual separation between the spouses
Intention to live separately
Without the consent of the other party
There is no reasonable cause for the desertion
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.
PRE-REQUIREMENTS Firstly, ensure that you have satisfied several requirements before bringing any divorce claim:
The marriage must be registered or considered to be registered under the law of Malaysia or a foreign law, which provides for monogamous marriage
Both parties must live in Malaysia or consider Malaysia to be their permanent home
Parties must be married for at least 2 years, except for exceptional cases by virtue of Section 50 of the Act
Additionally, the parties must prove to the court that they will suffer if this petition is not allowed. The Court will also take into consideration the welfare of the children and possibility of the spouses to reconcile during this period. MARRIAGE TRIBUNAL
Secondly, you must refer to the conciliatory body and be certified that it has failed to reconcile both parties by virtue of Section 106 of the Act. The purpose of this session is to reconcile the parties and may also discuss issues such as alimony, matrimonial property and custody of children.
You can go to the National Registry Department office nearby together with a copy of identity card, original and copy of passport, original and copy of marriage registration certificate, and a police report (if applicable) and submit the JPNKC form 14 to the officer.
Sometimes the attempts of reconciliation would have been made several times. If the tribunal is satisfied that there is no point of settlement and reconciliation between the spouses, they will then issue a tribunal certificate which needs to be included and exhibited in the divorce petition later.
However, the Act also provides for exceptional cases, such as the reference to the conciliatory body is not required and parties can apply for the tribunal exemption. This could happen if:
the respondent is required to appear before a conciliatory body and but wilfully fails to attend
the respondent is residing abroad within 6 months of the date of the petition
the petitioner alleges that he/she has been deserted and does not know the whereabout of the other spouse
the respondent is imprisoned for a period of 5 years
the respondent is suffering from severe illness or incurable mental problems
any other reasons where the court is satisfied that referring to the conciliatory body to be impractical
PETITION OF DIVORCE
To file a single divorce petition, you need to ensure that you possess these documents to be exhibited in your petition:
A copy of the marriage certificate
A copy of birth certificates of children (if any)
A copy of the property ownership documents such as Sale and Purchase Agreement
A copy of certificate from marriage tribunal or conciliatory body
After filing and service of petition to the respondent, the respondent shall give notice of intention to defend and needs to reply to the petition. The petitioner may file a reply after receiving the copy of the answer. Then, the Court will fix a date for a trial.
During the trial, the Court also has the power to give decision regarding to the custody of children, maintenance of spouses and maintenance of the children. Usually, single divorce petition might take up almost one year (or even more) for the divorce to be finalized where it varies on each case. This is also why some people opt to discuss with their spouse for joint petition divorce since it is quicker and less costly.
Once the court enters the decree to the petition, the decree is temporarily effective. However, the marriage is not yet formally dissolved, and the spouses cannot remarry until the end of the cooling off period of three (3) months. Henceforth, the divorce decree nisi will be made absolute. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required. If reconciliation occurs between the spouses after the pronouncement of a decree nisi (before it is made absolute), either party can apply for an order to rescind the decree by consent.