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A General Overview on the Procedures and Time Frame Involved
Introduction
The family institution is a basic social unit, melded through blood, marriage, or adoption. Its existence and structure are primarily regulated by legislation, to encourage strength and stability within the family unit, and more importantly to ensure the protection of its weakest member being women and children. Relevant legislation enacted in Malaysia for the above purposes, among others, are :
a) Law Reform (Marriage and Divorce) Act 1976;
b) Married Women Act 1957;
c) Married Women and Children (Maintenance) Act 1950;
d) Married Women and Children (Enforcement of Maintenance) Act 1968;
e) Guardianship of Infants Act 1961; and
f) Child Act 2001.
The Role of the High Court of Malaya
Pursuant to Section 24(a) of the Courts of Judicature Act 1964, the civil jurisdiction of the High Court of Malaya includes “jurisdiction under any written law relating to divorce and matrimonial causes”. In other words, the High Court of Malaya is clothed with the jurisdiction to hear all matrimonial and/or divorce proceedings. Hence, any petition for a divorce order must be filed at the Family Division of the High Court of Malaya.
The Joint Petition
The primary Act governing matrimonial matters in Malaysia is the Law Reform (Marriage and Divorce) Act 1976 (“the Act”). Where parties have mutually agreed to a divorce and the terms of the divorce, the said parties may proceed to file a joint petition for divorce under Section 52 of the Act, as opposed to a single petition for divorce.
Pre-Requisite in relation to the filing of a Joint Petition
A divorce petition can only be filed if the pre-requisites under the Act are satisfied. Firstly, the parties seeking to dissolve their marriage must have been married for at least 2 years under Sections 50(1) and 52 of the Act.
Further, as a general rule, parties seeking a divorce decree must first refer their matter to a conciliatory body before filing a petition for divorce (Section 106(1) of the Act). The conciliatory body may be a council made up of the appropriate authority of any religion, community, clan or association, a marriage tribunal, or any other body approved by the Minister. In most cases, parties would appear before the marriage tribunal (Tribunal Perkahwinan) set up at the certain branches of the National Registration Department (Jabatan Pendaftaran Negara) which falls within the Ministry of Home Affairs’ purview.
However, an exception lies where parties have agreed to dissolve their marriage through a joint petition under Section 52 of the Act. In this regard, parties may rely on the lettering in Section 106(1) of the Act to waive the need to attend any conciliatory session before presenting a joint petition to Court.
Documents filed for Joint Petitions
The requisite documents to be filed by the parties jointly includes:
a) the Joint Petition;
b) an Affidavit to verify the contents of the Joint Petition; and
c) a Statement as to Arrangements for Children, if required.
The Joint Petition must comply with the requirements stipulated under Rules 8 and 10(4) Divorce and Matrimonial Proceedings Rules 1980. Similarly, the said affidavit and statement must adhere to the conditions laid out in Rule 7(2) of the same Regulation.
In addition to the above, both parties must execute a document known as Notice of Appointment of Solicitors, to authorise their solicitors to act on their behalf.
Time Frame
Generally, it takes 2 months for a petition to be heard from the date it is filed. The hearing date is usually affixed on the petition upon it being sealed by the Court.
Both parties must physically attend, and appear before the Court on the hearing date, unless there are cogent reasons to waive the necessity of parties’ attendance by the Court. One such example is the inability of a party to be present due to travel restrictions imposed by the Government. In such circumstances, an Affidavit of Non-Appearance must be affirmed by the said party, and filed in Court before the Hearing date.
Decree Nisi and Decree Absolute
Upon hearing both parties and having satisfied that all requirements have been complied with, the Court may grant a decree nisi of divorce. A decree nisi is an interim decree granted prior to a decree absolute and it may be taken to mean, that the said marriage will be dissolved on a later date unless there are reasons not to dissolve the same.
Pursuant to Section 61 of the Act, a decree nisi may be made absolute after the expiry of 3 months from the date the decree nisi is granted. However, in special circumstances, the Court has the discretion to prescribe a shorter period for the decree nisi to be made absolute.
As such, generally, the estimated time taken for a registered marriage to be dissolved through a joint petition is 5 months from the date the petition is filed. Once the decree nisi is made absolute, it is good practice to deliver a copy of the decree absolute to the National Registry Department to ensure that the parties' marital status is updated accordingly.