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Breaking Up is Hard to Do

Ezane and Susanah explain why that may indeed be the case! 

Neil Sedaka laments in his hit song that “Breaking up is hard to do”. While this may sometimes be true, getting a divorce could be even harder because the ending of a marriage can only be done subject to certain conditions and with the Court’s involvement.  

 

This article discusses the ways in which non-Muslim couples may seek to dissolve their marriage under Malaysian law.

 
 


THE LAW REFORM MARRIAGE AND DIVORCE ACT 1976  

 

The Law Reform Marriage and Divorce Act 1976 (“LRA”) is the legislation regulating non-Muslim marriages and divorces in Malaysia. The LRA came into force on 1 March 1982.

 

Under the LRA, there are 3 grounds upon which a married couple may petition for divorce, namely:-

  1. Where one party to the marriage has converted to Islam (section 51, LRA);
  2. Where both parties mutually consent to its dissolution (section 52, LRA); and
  3. Where the marriage has irretrievably broken down (section 53, LRA).

 
 

CONVERSION TO ISLAM

 

Where a party to a marriage has converted to Islam, the other party who has not converted may petition for divorce. A non-Muslim marriage is not automatically dissolved upon one of the parties converting to Islam. Conversion only provides a ground for the party who has not converted to petition for divorce.

 

Section 51 of the LRA enables a party who has not embraced Islam to make an application to dissolve the marriage at the High Court after the expiration of three months from the date of his/her spouse’s conversion. There is no impediment to the Muslim spouse appearing in the divorce proceedings in the High Court.

 

The High Court will also have jurisdiction to determine any applications for ancillary relief, for example, applications for maintenance or child custody, even though one spouse has already converted to Islam.

 

It is pertinent to note that an order for the dissolution of a non-Muslim marriage by a Syariah Court by virtue of conversion would have no legal effect in the High Court other than as evidence of the fact that the marriage had been dissolved under Islamic law. The non-Muslim marriage remains intact and continues to subsist until the High Court dissolves it.

 


DIVORCE BY MUTUAL CONSENT

 

Divorce by mutual consent is the simplest and fastest way to end one’s marriage. However, this requires both parties to the marriage not only to freely consent to a divorce but also to agree on how they wish to divide the matrimonial assets, the quantum of spousal maintenance to be paid, if claimed, and arrangements involving any children of the marriage.

 

A joint divorce petition will be presented by both the husband and wife seeking a court order for the dissolution of their marriage on their agreed terms. The Court will usually respect the parties’ wishes and make a decree dissolving the marriage on being satisfied that both parties have freely consented to the divorce and that proper provision has been made for the wife and for the support, care and custody of any children of the marriage.

 


BREAKDOWN OF MARRIAGE

 

The third way out of one’s marriage would be to petition for divorce on the ground that the marriage has irretrievably broken down.

 

Assuming that the petitioner is the wife (and this applies equally to situations where the husband petitions for divorce), proof of breakdown can be seen in the following situations:-

  1. Where the husband has committed adultery and his wife finds it intolerable to live with him. Adultery must be proved to the satisfaction of the Court beyond reasonable doubt and the wife must show not only that her husband has been unfaithful but also that she finds it intolerable to continue to live with him.
     
  2. Where the husband has behaved in such a way that the wife cannot reasonably be expected to live with him. Under this ground, the Court will consider the effect of the behaviour of the husband on this particular wife and decide whether it is grave enough that the wife cannot reasonably be expected to live with him. Unreasonable behaviour can range from emotional and physical abuse to persistent nagging by one’s spouse!
     
  3. Where the husband has deserted the wife for a continuous period of at least 2 years immediately preceding the presentation of the petition. This involves the abandonment of cohabitation coupled with the intention of deserting the wife.
     
  4. Where the couple has lived apart for a continuous period of at least 2 years before the presentation of the petition. A petitioner relying on this ground cannot simply rely on a 2-year separation to obtain a divorce but must also rely on particulars of the breakdown. For example, they must show that they did not socialise or have sexual relations with each other during the 2-year separation.

 

Unlike joint divorce petitions, there is usually no prior agreement in place with respect to the division of matrimonial assets, spousal maintenance or arrangements involving the children.  These issues will be determined by the Court, after having considered all the evidence before it.

 


CONDITIONS PRECEDENT TO DIVORCE

 

Depending on which ground is invoked, certain pre-requisites must be satisfied by a petitioner or joint petitioners, in the case of a joint petition, before a petition for divorce may be presented.

 

Duration of Marriage

 

Before a petition for divorce may be presented, the couple must have been married for at least two years (section 50, LRA). This is because the law recognises that the first 2 years of a marriage are the most critical and difficult. So unless it can be shown that there are exceptional circumstances or hardship suffered by a newlywed, he/she cannot petition for divorce within the 2-year period. Whether exceptional hardship exists is subjective and is to be judged by prevailing standards of acceptable behaviour between the spouses.

 

This requirement however, does not apply to a petitioner whose spouse has converted to Islam. In cases of conversion, the petitioner merely needs to have been married for at least 3 months from the date of the conversion.

 

Certification by Conciliatory Body

 

A spouse intending to petition for divorce on the ground that his/her marriage has irretrievably broken down must have first referred the matrimonial difficulty to a conciliatory body and obtained a certificate from that body which confirms that it has failed to reconcile the parties, unless one or more of the exceptions listed under sub-sections (1)(i)–(vi) of section 106 of the LRA. These exceptions include situations where the respondent (i) has been imprisoned for five years or more; or (ii) is suffering from an incurable mental disease; or (iii) has deserted the petitioner and the petitioner does not know the whereabouts of the respondent; and (iv) the respondent resides abroad and is unlikely to enter the jurisdiction within six months after the date of the petition.

 

Domicile

 

Both parties to the marriage must be domiciled in Malaysia at the time the petition was presented. “Malaysia” includes both East and West Malaysia.

 

There are three types of domicile: domicile of origin, domicile of choice and domicile of dependency.

 

Domicile of origin means the domicile of birth. As for domicile of choice, there are two essential elements involved in determining this, namely the fact of residence and the intention to reside in the country permanently for an indeterminate period. As regards a domicile of dependence, a woman takes the domicile of her husband upon marriage. A married couple have therefore, only one domicile and that is the domicile of the husband. A wife can abandon her husband's domicile but she has to prove that the abandonment is permanent and unequivocal before the Court can take cognizance of it.

 


A FOURTH WAY OUT?

 

One other way to put a “marriage” to an end would be to annul it. But an annulment may be obtained only under the limited circumstances provided under the LRA, such as a marriage between persons of the same gender, which renders a marriage void, or incapacity or wilful refusal to consummate a marriage, which render a marriage voidable. An annulment of a marriage is distinct from the dissolution of a marriage by divorce and falls outside the scope of this article.

 


CONCLUSION

 

So whilst getting married isn’t that difficult to do, once the “I do’s” have been uttered, a married man or woman can only legally leave the person he/she married with an order of Court. Breaking up is indeed hard to do.

 

 

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