Malaysia TOP 100 Divorce Law FAQ
Award-Winning Family Law Firm in Malaysia

I. Common Misconceptions About Joint Petition Divorce
(Mutual Consent Divorce)

Q1: Is it necessary to attend court to apply for divorce, or is signing at a law firm sufficient?

After signing the documents at the law firm, both parties are still required to attend court.

Q2: If I do not wish to see the other party but want a divorce, is it possible?

You may attend the law firm on different dates to sign the divorce consent documents, but both parties must still be present together in court.

Q3: Can we agree to divorce first and decide on the terms (e.g. child custody, maintenance) later?

No. All terms must be decided at the time of filing the divorce application.

Q4: If both parties jointly own a property and one party no longer wishes to service the mortgage after divorce, is that allowed?

Both parties must reach an agreement on who will service the mortgage prior to the divorce.

Q5: My husband has an affair but I have no evidence. Can I still apply for divorce?

Yes. Mutual consent divorce does not require proof of adultery.

Q6: Must we attend mediation before applying for divorce?

No. Mediation is not required for mutual consent divorce.

Q7: What documents must I provide to the lawyer?

Marriage certificate (copy), children’s birth certificates (if any), property documents (if relevant), and bank account details (if maintenance is involved), among others.

Q8: What grounds are required for mutual consent divorce?

It is sufficient to state that the marriage has irretrievably broken down. No specific reason is required.

Q9: How long does a divorce take to become effective?

Generally about 3 months, though an application may be made for immediate effect.

Q10: Do both parties need to meet the lawyer?

Yes. Both parties must provide information and sign the documents before a Commissioner for Oaths.

Q11: Must children attend court?

Generally no, unless specifically required by the court.

Q12: If one party cannot attend court, can the divorce still proceed?

Yes. The lawyer may apply for exemption, and documents can be signed before a Commissioner for Oaths.

Q13: If the hearing date clashes with travel plans, can the case proceed?

An adjournment may be requested, or the hearing may be conducted via Zoom.

Q14: If one party is a foreigner who does not understand Malay, can divorce still proceed?

Yes. An interpreter will translate the documents before signing.

Q15: Can we proceed without informing the children?

Yes. Children need not be informed in a mutual consent divorce.

Q16: Can we continue living together after divorce?

Yes.

Q17: Can maintenance be adjusted after divorce if already agreed?

No. Any adjustment requires a court application to vary the order.

Q18: Can property division be changed after divorce?

No. Once the court order is final, it cannot be altered.

Q19: Can I claim a share of property acquired by my ex-spouse after divorce?

No.

Q20: Can I continue receiving maintenance after remarriage?

No, pursuant to Section 82 of the Law Reform (Marriage & Divorce) Act 1976.

Q21: Can I still receive maintenance if I cohabit with other partner after divorce?

Generally, yes.

Q22: Do both parties need to engage lawyers?

No. One party engaging a lawyer is sufficient.

Q23: What if one party refuses to negotiate terms?

It is advisable to reach agreement first; otherwise, mutual consent divorce may not be suitable.

Q24: Do I need to update my status with JPN after divorce?

No. The court will update it automatically.

Q25: Can maintenance still be claimed for a child above 18?

Yes, if the child is still pursuing education, and it can be claimed until graduation.

Q26: Can we apply for mutual divorce if married less than two years?

No. The marriage must be at least two years. Unless exception apply.

Q27: What if I fail to pay maintenance?

The other party may file a committal application for non-compliance with a court order.

Q28: What if I do not understand Malay in the divorce documents?

A translator will be arranged before signing the affidavit.

Q29: What happens in court? Will the judge ask complex questions?

Usually not. The judge will normally just confirm both party understanding and consent.

Q30–Q32: Divorce Within Two Years of Marriage

Mutual consent divorce is generally not allowed;
Divorce may be possible under special circumstances or hardship;
Mediation may be attempted but no certificate will be issued if it fails.

II. Unilateral Divorce (Without Mutual Consent)

Q33: What if I want a divorce but my spouse refuses?

You may file a unilateral divorce petition. (Single Petition Divorce)

Q34: What must be done before filing?

You must first attempt reconciliation at a Conciliatory Body.

Q35: What is a Conciliatory Body?

As defined under Section 106(3): religious bodies, associations, tribunals, or government-recognised bodies.

Q36: Is reconciliation mandatory?

Not necessarily; exemption may be applied through a lawyer.

Q37: Can a lawyer assist in avoiding reconciliation?

Yes, by applying for exemption.

Q38: What are valid grounds for exemption?

Includes desertion, unknown whereabouts, overseas residence, imprisonment, mental illness, or special circumstances.

Q39: How many sessions are required?

At least 3 sessions; duration varies.

Q40: What happens during reconciliation?

Both parties present their views; if unsuccessful, a certificate is issued with recommendations.

Q41: Can divorce be filed after obtaining the certificate?

Yes.

Q42: What if the other party refuses to attend?

A certificate may still be issued indicating failure to reconcile for the session.

Q43: Must we be separated for two years before filing?

No. Proof of breakdown is sufficient.

Q44: If adultery is involved, must we still wait two years?

No, but proof of adultery is required.

Q45: Can I sue the third party?

Yes, under Section 58(3).

Q46: What can be claimed?

Typically damages, subject to court decision.

Q47: Is evidence required?

Yes, to a high standard of proof.

Q48: What evidence proves adultery?

Circumstantial evidence, birth records, medical evidence, or admission.

Q49: Adultery after separation—can I sue?

Yes, but not as grounds for divorce.

Q50: No direct proof but a child exists?

Possible, if the birth certificate identifies the husband.

Q51: Outcome of suing third party?

Compensation if successful; costs if unsuccessful.

Q52: Other grounds for divorce?

Unreasonable behaviour, desertion, or separation.

Q53: What is unreasonable behaviour?

Neglect, control, jealousy, or abuse.

Q54: How to prove desertion?

Communication records showing no contact for two years.

Q55: Alternatives if divorce is not possible?

Apply for judicial separation.

Q56: Requirements for judicial separation?

Marriage in Malaysia, monogamous, residency, and breakdown grounds.

Q57: If spouse is overseas?

Application still possible under certain conditions.

Q58: Grounds for judicial separation?

Adultery, behaviour, desertion, or separation.

Q59: Effects of judicial separation?

Marriage continues, no remarriage, no cohabitation obligation.

Q60: If spouse cannot consummate marriage?

Apply for nullity of marriage.

Q61: Effect on children?

Children remain legitimate.

III. Maintenance (Spousal Support)

Q62: What is maintenance?

Financial support covering living expenses, housing, medical, and transport.

Q63: Types of maintenance?

Periodic or lump sum.

Q64: Can it be lump sum?

Yes, for a “clean break”.

Q65: When can maintenance be claimed?

During proceedings or upon court orders.

Q66: What if unable to support oneself before trial?

Apply for interim maintenance.

Q67: Can maintenance be adjusted after divorce?

Yes.

Q68: What factors are considered?

Marriage duration, children, age, income, and financial impact.

Q69: Can a husband claim maintenance?

Yes.

IV. Child Maintenance & Rights

Q70: What does child maintenance cover?

Living, housing, medical, transport, and education.

Q71: Until when is it payable?

18 years old, or longer if studying or special needs.

Q72: When can court order child maintenance?

During disputes, abandonment, or custody arrangements.

Q73: Must the father pay?

Usually, unless the mother is capable.

Q74: What factors are considered?

Parents’ financial ability.

Q75: Other legal basis?

Married Women and Children (Maintenance) Act 1950.

Q76: Can it be adjusted?

Yes.

Q77: Does it include university fees?

Yes.

Q78: Legally extension for payment of maintenance?

Yes, able to extend until university completion since 2018.

Q79: Are receipts required?

Generally yes.

Q80: If payment is refused?

Legal enforcement; contempt may lead to imprisonment.

V. Property Division & Real Estate

Q81: If spouse secretly disposes property?

Apply for injunction.

Q82: Court considerations?

Nature of asset, contributions, and other factors.

Q83: Is division always equal?

No.

Q84–Q87: Property entitlement scenarios

Depends on contributions and court’s assessment.

Q88: Can property be left to children?

Yes, subject to conditions.

Q89: For minors?

Held in trust until 18 years old.

Q90: If spouse refuses transfer?

Court may sign on behalf; caveat may be lodged on the property.

Q91: If spouse refuses to pay mortgage?

Legal action may be taken.

Q92: Sale of jointly owned property?

Court may intervene if one party refuses to cooperate.

Q93: Prevent future disputes?

Settle mortgage early.

Q94: When can orders be varied?

Misrepresentation, mistake, or material change.