Malaysia has a dual legal system for family law—Muslims use a judicial system based on Islamic law, while non-Muslims use a judicial system based on English law. For Muslims, family law principles are laid down by Muslim jurisprudential scholars, while for non-Muslims, marriages and divorces are governed by civil court and the Law Reform (Marriage & Divorce) Act of 1976.
Islamic Law - Divorce by the Husband
In Malaysia, a husband may divorce his wife in the traditional manner by telling his wife, "I divorce you" three times. However, the husband must first get permission to do this from an Islamic court. If the wife does not agree to the divorce, or the court is not convinced the marriage has broken down, the court can order a reconciliation process. If reconciliation fails, the court will approve the divorce and make recommendations regarding child custody, maintenance, division of property and other relevant factors.
Islamic Law - Divorce by the Wife
Wives may also go to an Islamic court for divorce. However, only the following are grounds for a wife to request a divorce: the husband's disappearance for more than one year; failure to support the wife financially for three months; if the husband is in prison for three years or more; impotence; mental illness lasting two years; a communicable disease such as leprosy or venereal disease; cruel treatment; and if the wife's consent to marry had been obtained under duress. The Islamic courts will also accept other reasons on a case-by-case basis.
Civil Divorce Two-Year Time Limit
For non-Muslims, divorce in Malaysia is governed by civil law, family law and the civil courts. Under Malaysian civil law, a husband or wife cannot file for divorce until they have been married for two years or more unless a judge determines that there are exceptional circumstances. Judges may also delay the divorce procedure if they find that there is a good chance of reconciliation. It is up to the judge to decide how long a delay is called for.
Divorce Under Civil Law
In Malaysia, if one partner has converted to Islam and the other has not, this is an automatic grounds for divorce. The partner requesting the divorce must wait until three months after the conversion. Other grounds for divorce include mutual consent and irretrievable breakdown of the marriage. Evidence of irretrievable breakdown of a marriage includes adultery, desertion for at least two years, living apart for at least two years, or one party finding intolerable to live with the other because of their behaviour.
Damages for Adultery
In cases where one party is claiming adultery as a ground for divorce, it can also name the alleged adulterer as a co-respondent to the divorce. The party alleging adultery must prove that adultery took place. If the court is satisfied that it did, it can order the other party in the divorce and the co-respondent to both pay damages. The court can award any damages for adultery that it thinks fit.
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