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Malaysia: Family Law

Malaysia Family Law

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This office handles many international family law cases that have a Malaysian connection, working with counsel in Malaysia as appropriate, including:

     -- prenuptial agreements with a Malaysian connection

     -- divorce cases with a Malaysian connection

     -- international child abduction to and from Malaysia

     -- child relocation and child custody cases with a Malaysian connection.

 

Mr. Morley has also acted as an expert witness on the issue of potential child abduction to Malaysia. 

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Applicable Law and Courts Religion-Based

The Civil High Courts in Malaysia have jurisdiction over family law matters relating only to non-Muslims. Separate Syariah courts have exclusive jurisdiction over family law matters relating to Muslims. Article 121(1A) of the Malaysian Federal Constitution bars the secular courts from asserting jurisdiction in any matter that is within the jurisdiction of the Syariah courts.  

The Law Reform (Marriage and Divorce) Act 1976 [Act 164] of Malaysia is the statute that governs non-Muslim marriages and divorces in Malaysia. The Act expressly excludes its application to persons who profess the Muslim religion.

Non-Muslim Divorce Jurisdiction in Malaysia

The Law Reform (Marriage and Divorce) Act 1976 [Act 164] of Malaysia provides that the Malaysian courts have jurisdiction to grant a divorce if "the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia." In addition, Malaysian courts have divorce jurisdiction in favor of a wife (but not a husband) if the wife "is resident in Malaysia and has been ordinarily resident in Malaysia for a period of two years immediately preceding the commencement of the proceedings" or "the wife has been deserted by the husband, or the husband has been deported from Malaysia ... and the husband was before the desertion or deportation domiciled in Malaysia." (Sections 48 and 49 of the law).

The Act further provides that, "In any proceedings in which the High Court has jurisdiction by virtue of this section, the issues shall be determined in accordance with the law which would be applicable thereto if the parties were domiciled or resident in Malaysia."

Grounds for Non-Muslim Divorce in Malaysia

A petition for divorce may not be filed within the first 2 years of marriage, unless leave of court is obtained in cases of exceptional circumstances or hardship to the petitioner.

There is only one ground for divorce, which is that the marriage has irretrievably broken down. This must be proved any one of the following:

Adultery by the other spouse;

Both parties have been separated for two years or more;

The petitioner has been deserted by the other spouse for two years or more;

The other spouse has behaved in such a manner that the petitioner cannot reasonably be expected to live with him or her.

In addition, the Law Reform (Marriage and Divorce) Act provides (Article 51) that, "Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce."

Conversion of One Spouse

The Law Reform (Marriage and Divorce) Act allows a spouse who has not converted to Islam to bring an action for divorce on that basis. It does not provide any equivalent right to the spouse who has converted.

Child's Religion in Malaysia

Article 12(4) of the Malaysian Federal Constitution provides: "For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian." That provision has spawned enormous challenges when one parent acting unilaterally has purported to convert a child to Islam, particularly when the parties are engaged in a custodial dispute.

Division of Assets upon Divorce in Malaysia

If the divorce is one that is within the power of the civil courts, the "matrimonial assets" of the parties are to be divided as provided by Section 76 of the Law Reform (Marriage and Divorce) Act. Such assets  include those assets acquired by the parties "during the marriage" and "assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts."

The Act further provides that, upon a divorce, the court shall have regard to "(a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (b) any debts owing by either party which were contracted for their joint benefit; [and] (c) the needs of the minor children, if any, of the marriage" and "subject to those considerations, the court shall incline towards equality of division."

The Act then provides that the court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired during the marriage by the sole effort of one party to the marriage or the sale of any such assets and the division between the parties of the proceeds of sale. In exercising that power the court shall have regard to "(a) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring the family; [and] (b) the needs of the minor children, if any, of the marriage. The Act states that, "subject to those considerations, the court may divide the assets or the proceeds of sale in such proportions as the court thinks reasonable; but in any case the party by whose effort the assets were acquired shall receive a greater proportion."

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