Divorce

“I want a divorce…”

Life is unpredictable, and relationships are no exception. In many cases, a couple may only discover after marriage that they are incompatible, and in such circumstances, divorce may be the most appropriate solution for both parties.





In 1900, a collection of Tang Dynasty artefacts was excavated from the Mogao Caves in Dunhuang, dating approximately from the 9th to 11th century AD. Among these artefacts was a divorce agreement from the Tang Dynasty, the most well-known of which reads as follows:

“Marriage is founded upon a bond of affection and mutual obligation. The union of husband and wife is believed to be the result of fate and connections formed over previous lifetimes. However, if the relationship proves incompatible, it may become one of conflict instead. The wife may become resentful in speech, and the husband may develop aversion and estrangement. Like cat and mouse in mutual dislike, or wolf and sheep forced together, both parties finding themselves of divided hearts cannot continue in unity. It is therefore agreed that separation shall take place in the presence of family and relatives, in order to conclude the matter peacefully. After separation, may the wife adorn herself anew, style her hair elegantly, refine her appearance, and choose a noble and worthy husband. May resentment be dissolved and bonds be released; once parted, both parties may find peace and happiness. Three years’ provision of clothing and sustenance shall be offered as a gesture of goodwill. It is respectfully hoped that the lady may enjoy longevity and peace. This document is executed on the specified year, month, day, and location.”

This ancient divorce agreement reflects the meaning of marriage, the necessity of separation in certain circumstances, as well as provisions of maintenance and mutual well-wishes between spouses.

In modern times, when individuals choose to divorce, there are several key legal considerations to be aware of.

Methods of Divorce

In Malaysia, non-Muslim divorces generally fall into two categories: joint petition divorce and unilateral petition divorce.

If both spouses mutually agree to separate amicably, they may proceed with a Joint Petition. In such cases, the parties may agree on asset division, child custody, and maintenance arrangements, and then file a joint petition in court. This process is generally more cost-effective and faster, as the legal procedures involved are less complex.

If, however, the parties are unable to reach an agreement, or if one party does not consent to the divorce, the other party may file a Unilateral Petition.

Child Custody

Joint Petition: Custody arrangements are determined by mutual agreement between the parties.

Unilateral Petition: One party may apply to the court for a determination. The court will decide custody based on various factors, including:
1) The welfare of the children
2) The wishes of the parents
3) The wishes of the children (if they are of sufficient age and maturity to express an independent view)

For children below seven (7) years of age, the court generally presumes that the mother is the more suitable custodian, unless the father is able to rebut this presumption with evidence.

However, each case is fact-specific, and seeking legal advice from a qualified lawyer is strongly recommended.

Division of Assets

Assets accumulated during the marriage, or acquired as a result of the marriage, are legally defined as matrimonial assets.

Such matrimonial assets may include:

• Real property (houses)
• Motor vehicles
• Company shares
• Stocks and securities
• Jewellery
• Bank deposits and fixed deposits
• Trust funds
• Insurance policies
• Employees Provident Fund (EPF) savings
• Club memberships
• Others

Assets owned individually prior to marriage generally remain separate property and do not automatically become matrimonial assets upon marriage.

It is therefore advisable to consult a lawyer prior to divorce proceedings to determine which assets are matrimonial assets and which are personal assets, in order to avoid potential financial disputes.

Maintenance (Alimony)

Joint Petition: Maintenance arrangements are mutually agreed upon between the parties.

Unilateral Petition: One party may apply to the court for a determination. The court will consider various factors, including:

• The financial needs of the wife and/or children
• The standard of living during the marriage
• The income of each party

In certain exceptional circumstances, maintenance may also be ordered in favour of the husband.

In all matters relating to maintenance, it is advisable to seek legal advice, as a lawyer will be able to assess the relevant factors and provide appropriate guidance.