In Malaysia, there are two types of divorce of marriage for non-muslims:
1) divorce by mutual consent, i.e. both parties agree to the divorce
2) divorce without mutual consent
DIVORCE BY MUTUAL CONSENT
Both parties to the marrige can jointly file a divorce where they can mutually agree to divorce. To be eligible for the application, the couples must have been married for at least two (2) years at the time the petition for divorce is filed. By a joint petition, both parties can freely decide to the maintenance for wife & children, custody and care of the children, division of matrimonial assets subject to the court's approval.
DIVORCE WITHOUT MUTUAL CONSENT
Either party to a marriage may file a petition to divorce without consent of the other party, on the ground that the marriage has broken down. The break down of the marriage can be grounded as follows:
1) that the other party has committed adultery
2) that the other party has behaved in such a way that it cannot reasonaly be expected to live together
3) that the other party has deserted for a continuous period of at least 2 years
4) that the parties to the marriage have lived apart for a continuous period of at least 2 years.
WHO HAS THE RIGHT OVER THE CUSTODY OF THE CHILDREN?
In a joint petition, both parties can mutually agree to propose any arrangement to the children.
In a single petition, either party can make application for the custodianship. The court will decide the custodianship after considering all factors including: 1) The welfare of the children 2) The wishes of the parents 3) The wishes of the child if the child is eligible to express an independent opinion.
There is a rebuttable presumption that the custodianship of a child below
7 years belongs to the mother. Kindly take note that this is a presumption which is rebuttable by the father.
WHO HAS THE RIGHT & INTEREST OVER MATRIMONIAL PROPERTY?
In a joint petition, both parties can mutually agree to propose any arrangement to divide or transfer the property.
In a single petition, either party can make application for the division of matrimonial property. If the property is acquired by the sole effort of the party, the court may divide the property as the court thinks reasonable. The party upon whose effort the assets were acquired will receive a greater proportion. If the property is acquired by joint effort, the court may divide the property as the court thinks reasonable after considering factors like the extent of the contributions made by each party.
HOW LONG DOES IT TAKE TO FOR A DIVORCE MATTER TO BE COMPLETED?
The actual time needed for may vary in each and every single case depending on the following factors:
1. The date of hearing granted by the court ( whether its early or late )
2. The complexity of the case 3. The Time needed for both parties to reach a settlement ( for joint petition's case)
Generally, a joint petition divorce matter takes 1 year to be completed while a single petition divorce (without mutual consent) matter takes more time to be completed. The divorce matter could take more time if it is contested.
HOW MUCH IS THE LEGAL FEES?
Generally, a joint petition's legal fee is cheaper than a single petition's ( without mutual consent ). The legal fee chargeable varies from one case to another depending on the following factors:
- The complexity of the case as it affect the amount of time & skill a lawyer need to spend;
- The complexity of the Petition's Content ( i.e. The complexity of the Divorce Arrangement & Settlement)
- Whether the divorce petition is contested. Legal fee for contested matter is generally higher than uncontested matter.
WHO SHOULD BEAR THE LEGAL FEE? HUSBAND/ WIFE?
For joint petition matter, there are two choices: 1)
Either party pay for the whole legal fee 2)
Both parties share the legal fee in a proportion that is mutually agreed
For single petition matter, each party has to bear their own legal fee generally.
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