As a Christian, my perception of marriage is the journey towards finding your soulmate. A Christian marriage can be defined as the union of a man and a woman to a lifelong partnership by God. By reciting to (Matthew 19:6) “Therefore, what God has joined together, no human being must separate.", in consequence, it is a sin to have a divorce. Yet, I started to realise that things are not always that holy after working about a year in a legal firm. Likewise, it is perfectly legal to get a divorce and re-marriage under our country civil law system. So, do not be surprised if you met someone on Tinder telling you their relationship status is 'complicated', because things can be really out of your imagination sometimes. If you are one of them who fall under the above category, the rest of the article might keep you inform on some of the things that you need to take note during a divorce and re-marriage. Schedules are tight this week, so I have to summarize the article in Q & A form.
What are the conditions for a person to get married?
It must be between a male and a female, a civil partnership between the same gender and same-sex marriage is not yet recognized under the Malaysia family law.
The couple must be of sound mind.
The couple must not be anyhow blood related, what we often term as consanguinity.
Both parties must not be married to a 3rd party during the registration.
Both parties must attain the age of 21 years old, for boy and girl between the age of 18-21, the consent from their parents is needed, and to girls aged between 16-18, it is compulsory for them to get the permission from the state chief registrar.
When is a marriage voidable?
Either one of the parties did not validly consent to the marriage and is under duress, undue-influence during the registration.
Either one of the parties is suffering from mental disorder.
Either one of the parties is suffering from a vulnerable disease.
The wife is pregnant by some other person than the husband before the marriage.
The wife wilfully refusal to consummate after the marriage or the husband incapacity to consummate.
What is a Non-contested Divorce?
A joint divorce is a voluntary consent by both the parties to dissolve the marriage and to have a mutual agreement on all matters such as to the division as to any matrimonial properties, the maintenance of the spouse and children and the custody of the children.
What is the process of a Non-contested Divorce?
The lawyer represents both the parties will file a joint divorce petition with the High Court of Malaya.
The court will then issue a hearing date to the parties. At the hearing, the parties will need to attend court together with their representing lawyer. The lawyer will then read out the petition before the judge.
After the hearing, the court will issue a Decree Nisi, this means that the marriage is now temporary dissolve. The parties are not allowed to re-marriage during this period.
After 3 months from the date of Decree Nisi, the parties can now apply to the court for a Decree Absolute, this is the final pronouncement from the court that the marriage is dissolved.
The last step is to send the Decree absolute to JPN to reinitiate their 'single' status.
What is a contested divorce?
If the spouse cannot agree with one or all of the matters, the court will consider the divorce contested. In a contested divorce, the parties must fulfil the following criteria:
They must be in the marriage for 2 years;
They must prove that there is an effort for reconciliation (This will usually take 4-6 months); and
They must show that there is an irretrievable breakdown under section 54 of the LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976
What is the proof of an irretrievable breakdown under section 54?
Adultery;
The parties have lived apart for 2 years;
The spouse has been deserted for at least 2 years;
The is behaviour from the party that cannot reasonably be expected to live with, this usually refers to domestic violence suffer from the wife.
There is a conversion of gender from male to female or vice versa.
How will the court decide my child custody in a contested divorce?
There is a rebuttable presumption that for a child in the age of 7 or less, it is generally better for the child to be under the custody of the mother.
The court will take into consideration the welfare of the child in terms of emotion, education and religion.
Can I get any alimony from my ex-husband in a contested divorce?
The court can order the husband to pay for your maintenance following by your needs and the degree of responsibility to the breakdown.
When will the maintenance order end in a contested divorce?
The maintenance order can end in three situations:
upon the death of the spouse;
upon the remarriage of the spouse; or
having discovered that the spouse living in adultery.
Can my children get any alimony from my ex-husband in a contested divorce?
The court can order the husband to pay for the maintenance of the child until he attained the age of 18 or till the ceasing of any physical or mental disability the child suffers from.
How will the court decide the division of property in a contested divorce?
The court can order the division of any assets acquired by the joint effort of both parties during the marriage. As to the proportion of the division, the court will regard to the contribution of the parties, debts, and the need for the minor.
(All credit to Ms Pushpa Ratnam lecture, thank you for summarizing all the rules in the Law Reform (Marriage and Divorce) Act 1976)
Comments