Getting a Unilateral Divorce or Contested Divorce in Malaysia: What to Expect and How to Prepare
In our previous article, we discussed uncontested divorce via joint petition, where both parties agree to part ways and there are no children involved in the marriage. In this article, we will shift our focus to contested divorce and unilateral divorce, where the divorce is not mutually agreed upon by both parties.
A unilateral divorce may be uncontested when either party to the marriage files the divorce unilaterally but the other spouse fails to attend or enter his or her appearance in defending the cause after the divorce petition is properly served upon him or her. A divorce petition will be contested when the respondent enters his or her appearance to defend the petition.
What is contested divorce?
Exactly what it sounds like, a contested divorce is the opposite of an “uncontested divorce”. A contested divorce occurs when one or both parties cannot agree, either about getting divorced or the terms of the divorce, such as child custody, child visitation, child and spousal maintenance, and matrimonial asset division.
A contested divorce is initiated by either party through a single petition, claiming that the marriage has irretrievably broken down. In this regard, the party initiating the divorce will be named ‘petitioner’ while the spouse who has to respond to the divorce petition will be named ‘respondent’’.
In order to show that the marriage has broken down, one or more of the following circumstances must be satisfied:
- 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;
- That the respondent has deserted the petitioner for a continuous period of at least 2 years before filing the petition
- That the parties to the marriage have been living apart for a continuous period of at least 2 years before filing the petition.
Understanding the Pre-requisites
- A contested divorce can only be filed after two (2) years of marriage. However, the court can grant leave for exemption of this requirement if there are exceptional circumstances or you have suffered exceptional hardship.
- Both husband and wife must be domiciled in Malaysia.
- The marital dispute must be referred to a conciliatory body or marriage tribunal, and the conciliatory body must have certified that it has failed to reconcile the parties. It is possible to dispense with the reconciliation sessions at the Marriage Tribunal under the following circumstances:-
- Where the petitioner alleges desertion and does not know the respondent’s whereabouts.
- The respondent lives abroad and will not return within six months.
- Where the respondent has wilfully failed to attend:
- Where the respondent is imprisoned for five years or more.
- The petitioner alleges that the respondent is suffering from an incurable mental illness.
- Where the court is satisfied that there are exceptional circumstances that make reference to a conciliatory body impracticable
In any of the circumstances above, the party will need to seek a lawyer’s assistance in obtaining an order from the High Court.
Contested Divorce: Resolving the Unresolved
As mentioned above, a contested divorce happens when parties each want different things related to child custody, child visitation, child and spousal maintenance, and matrimonial asset division. In such circumstances, the court will decide on the undecided issues or any disagreement between parties to ensure that fairness can be achieved under the law.
- Marriage to be dissolved: The court can always grant a divorce regardless of whether the party agrees or not.
- Child Custody: The court will decide the custody of the child after taking into consideration the welfare of the child and/or the wishes of the parents. If the child is under 7 years old, the court typically tends to grant custody to the mother in the best interest of the child. However, this can be challenged if there is evidence showing that the mother is unfit for custody.
- Child Access/Visitation Right: Subject to the facts and circumstances of the case, the party who was not given the right of custody will usually have the right of access to the child.
- Child Maintenance: The parents have the obligation to financially support their child, irrespective of custody arrangements. This includes providing reasonable accommodation, food, clothing, and education, considering the parents’ financial capabilities. Payment for child maintenance will usually end when a child reaches the age of eighteen. However, if the child is suffering from a physical or mental disability or is pursuing further or higher education or training, child maintenance will have to be paid until the cessation of such disability or the completion of such further or higher education or training.
- Spousal Maintenance: The wife may obtain maintenance from her former husband when the court orders her to do so. When accessing the amount of maintenance, the court will usually place the former wife in a position where she can maintain the same standard of living as she had during the marriage, considering the financial situation of the husband. The right of any divorced person to receive maintenance from his or her former spouse shall cease when he or she remarries or lives in adultery with any other person. There are also exceptional circumstances where the wife will be responsible for the former husband’s maintenance if he is incapacitated from earning a livelihood by reason of mental or physical injury or ill health.
- Division of Matrimonial Assets: The division of matrimonial assets may not be equal in all cases. The Court will divide the asset as it thinks reasonable by considering factors such as the extent of the contributions made by each party, the debts owing by either party that were contracted for their joint benefit, and the needs of the minor children.
- Adultery Issue: The third party, being the adulterer or adulteress, can be sued as the second respondent for compensation if the adultery is proved.
A contested divorce tends to be longer and more expensive than an uncontested divorce. It may also drain you of all your resources, including money, time, and energy. Yet, amidst the tumult, thoughtful consideration of the future, especially concerning children, remains paramount.
Note: This alert is for general information only and is not a substitute for legal advice. The facts and circumstances of each and every case will differ and therefore require specific legal advice. For tailored guidance aligned with your circumstances, reach out to us for a complimentary consultation at +601154304970 or penang@nglaw.com.my .
