DIVORCE PROCESS (DP)
The DP in Malaysia refers to the legal steps that couples take to dissolve their marriage. Marriages may end for various reasons, including domestic violence, incompatibility, and financial difficulties. The legal framework for divorce differs for Muslims and non-Muslims in Malaysia. Muslim marriages and divorces are governed by Syariah law, such as the Islamic Family Law. For non-Muslims, the relevant law is the Law Reform (Marriage and Divorce) Act 1976 (LRA), which outlines the procedures and requirements for divorce. This article will focus specifically on the DP for non-Muslims.

There are two primary methods for obtaining a divorce:

• Single Petition Divorce – One spouse files for divorce without the consent of the other.
• Joint Petition Divorce – Both spouses mutually agree to file for divorce together.

Pre-requirements before applying for divorce
Before applying for divorce in Malaysia, couples must fulfil two key requirements:

1. Duration of Marriage
   • The marriage must have lasted for at least two years, as stipulated under Section 50 of the Law Reform (Marriage and Divorce) Act 1976 (LRA).
   • However, a divorce may be filed within less than two years if court permission is obtained.
2. Marriage Registration in Malaysia
   • The marriage must be legally registered in Malaysia.

Once the prerequisites for divorce are met, the next step is determining whether both parties agree on the terms of the divorce, such as: division of matrimonial property, child custody and maintenance (if applicable), spousal alimony, etc.

As for a single petition, they need to meet two other conditions:

1. Conciliation Process in Divorce
   Before filing a single divorce petition, one spouse must first refer the marriage to the Marriage Tribunal under the National Registration Department (Jabatan Pendaftaran Negara – JPN) for conciliation, as required under Section 106 of the Law Reform (Marriage and Divorce) Act 1976 (LRA). This process is commonly known as the “JPN divorce procedure” or “prosedur perceraian JPN bukan Islam” in Bahasa Malaysia.
   How the Conciliation Process Works:

   • The JPN will schedule reconciliation sessions for the spouses, usually lasting 3 to 4 months and not exceeding 6 months.
   • Both spouses must personally attend these sessions.
   • If reconciliation fails, the JPN will issue a Certificate of Non-Conciliation, which is required to proceed with a single divorce petition.
   • Even if a spouse refuses to attend the conciliation sessions, the JPN can still issue the Certificate of Non-Conciliation, allowing the divorce process to move forward.

2. Proving Irretrievable Breakdown of Marriage
   To proceed with a single divorce petition, the applicant must prove that the marriage has irretrievably broken down based on one of the following legal grounds:

   • Adultery – One spouse has committed adultery, and the other finds it intolerable to continue living with them.
   • Unreasonable Behaviour – One spouse has acted in a way that makes it unreasonable for the other to continue the marriage. This may include domestic abuse, cruelty, or persistent neglect.
   • Desertion – One spouse has abandoned the other for at least two years without justification.
   • Separation for at Least Two Years – Both spouses have lived separately for at least two years, but this does not automatically grant divorce. A court order is still required.

COURT PROCESS:
After deciding on the type of petition, the spouses may engage an experienced divorce lawyer in Malaysia to initiate the divorce case and manage the legal procedure. The divorce process typically follows several key steps.

1. First, the relevant documents must be prepared, including identification cards or passports, the marriage certificate, the child’s birth certificate (if applicable), a certification of non-conciliation, and other supporting documents such as proof of an irretrievable breakdown of the marriage, any prenuptial agreement, or settlement agreement. Simultaneously, the lawyer will draft the necessary divorce documents, including the petition for divorce. Once the documents are ready, the spouses will sign the divorce petition, confirming their agreement with its contents.
2. Next, the legal firm will file the necessary documents in the High Court of Malaya. If it is a single petition divorce, the petitioner must serve the divorce papers on the other spouse, known as the respondent, who is then required to reply within a specific period. This step is not necessary in a joint petition divorce.
3. The court will then schedule a hearing date, where both parties must attend. In a single petition case, both spouses and their witnesses must present their case with supporting evidence before the Judge. Following the hearing, the Court will issue a Decree Nisi, which is a temporary order stating that the marriage has not yet been officially dissolved.
4. A three-month reconciliation period follows the issuance of the Decree Nisi, during which either spouse may apply to revoke the decree if they reconcile. In certain cases, the Court may shorten this period at its discretion. If no reconciliation occurs, the parties may apply for a Decree Absolute after three months, which is the final court order that legally ends the marriage.
5. Lastly, the Court will send the updated marital records and divorce order to the Registrar General at the National Registration Department (JPN) to formally update each spouse’s marital status. This completes the divorce registration procedure, allowing the spouses to remarry. In addition to updating marital status, JPN maintains marriage records and issues official marriage and divorce certificates.

ANNULMENT OF MARRIAGE:
In addition to divorce, there are lesser-known alternatives to ending a marriage, such as nullification or annulment of the marriage. A marriage can be nullified or annulled if it is found to be voidable. A marriage is considered voidable if one of the following conditions is met:

1. The marriage was not consummated due to the incapacity of either party to do so.
2. The marriage was not consummated because one party refused to consummate it.
3. Either party did not validly consent to the marriage.
4. At the time of marriage, one of the parties was mentally disordered and unfit for marriage.
5. At the time of marriage, one of the parties was suffering from a venereal disease in a communicable form.
6. At the time of marriage, the respondent was pregnant by someone other than the petitioner.

If one of these grounds can be proven, the Court may issue a declaration to annul or nullify the marriage. This legal process provides an alternative means of ending a marriage when certain criteria are met.