100Divorce

Question 69
Must maintenance always be paid by the husband to the wife? Can a husband claim maintenance from his wife?
Yes, it is possible if the husband is in need.

Question 70
What expenses does child maintenance include?
Child maintenance includes living expenses, accommodation, medical expenses, transport expenses, education, etc.

Question 71
Until when does child maintenance need to be paid?
Under Section 95 of the Law Reform (Marriage and Divorce) Act, unless the court provides another duration, child maintenance will be arranged until adulthood (18 years old), or if the child has a physical or mental disability, until such disability ceases. Alternatively, if the child is pursuing further education, such as university, it will be paid until the child graduates from university.

Question 72
Under what circumstances can the court make arrangements for child maintenance?
When the other party:

Refuses to maintain the child or even abandons the child;

Abandons the wife and child;

During matrimonial proceedings and applications for trial;

At the same time when making arrangements for the child’s custody or access rights.

Question 65
Under what circumstances can I claim maintenance?
Maintenance can be claimed under the following circumstances:
During matrimonial proceedings and pending trial.
Upon the granting of a decree of divorce or judicial separation.

Question 66
What can I do if I am unable to afford my living expenses while waiting for the trial of the divorce application?
You can apply to the court for interim spouse maintenance.

Question 67
If the maintenance is no longer sufficient to cover my living expenses after the divorce due to certain reasons, can I still apply to adjust the maintenance amount?
Yes. The court still has the power to vary the maintenance arrangements made previously even after the divorce.

Question 68When the court makes arrangements for maintenance, are there any legal criteria that the court needs to consider?
Before making maintenance arrangements, the court will first consider the circumstances and needs of both parties, including:
The duration of the marriage.
Whether there are children in the marriage.
The age of both spouses.
Whether one party was financially independent during the marriage.
The earning capacity of both parties.
Whether the divorce has an impact on the financial position of either party.

Question 60
if I find out after marriage that my husband is unable to consummate the marriage, what options do I have other than waiting for two years to apply for a divorce? I don’t want to wait that long, are there any other ways?You can apply to the court for a decree of nullity of marriage.

Question 61
Will a decree of nullity of marriage have any impact on our children?
Children under a decree of nullity of marriage will still be the legitimate children of both parties.

Question 62
What is maintenance?
Maintenance is to ensure that both parties can still maintain a certain standard of living after divorce, which includes living expenses, accommodation, medical expenses, dental expenses, and even transportation costs.

Question 63
How many types of maintenance are there?
Maintenance can be divided into two types, which are:
Paying a fixed amount to the other party every month.
Paying a lump sum to the other party.

Question 64
Can maintenance really be claimed as a lump sum? Are there any legal provisions stating that a lump-sum maintenance can be claimed?
Although family law does not provide any specific provisions regarding lump-sum maintenance, the court can still make arrangements for a lump-sum maintenance for the purpose of achieving a “clean break” between both parties.

Question 65
Under what circumstances can I claim maintenance?
Maintenance can be claimed under the following circumstances:
During matrimonial proceedings and pending trial.
Upon the granting of a decree of divorce or judicial separation.

Question 57
If my husband does not reside in Malaysia, can I still apply?
According to Section 49(1) of the Law Reform (Marriage and Divorce) Act 1976, you can still apply for a decree of judicial separation even if your spouse does not reside in Malaysia under the following two circumstances:
Being deserted by a husband who is domiciled in Malaysia (even if the husband subsequently acquires a foreign domicile).
Having continuously resided in Malaysia for at least two years immediately preceding the application.

Question 58
Under what circumstances can I apply for a decree of judicial separation?
According to Section 54 of the Law Reform (Marriage and Divorce) Act 1976, the court will consider the following factors when deciding whether to grant a decree of judicial separation:
The other party has committed adultery and you find it intolerable to continue living with them.
The other party has behaved in such a way that you cannot reasonably be expected to live with them.
The other party has deserted you for a continuous period of at least two years immediately preceding the application.
The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the application.

Question 59
What is the impact of a decree of judicial separation on my husband and me?
The legal effects of a decree of judicial separation include:
The marriage relationship remains legal and valid.
Neither party may remarry before a formal divorce.
Both parties are no longer obligated to cohabit (live together).
Both parties can still apply for a mutual or unilateral divorce at any time.
You can no longer claim damages from a third party on the grounds of adultery.
If the wife dies intestate (without a will), the husband cannot inherit her estate; however, if the husband dies intestate, the wife can still inherit his estate according to the law.

Question 54: How can I prove to the Court that my husband has deserted me for at least two consecutive years before filing the petition?

Question: How can I prove to the Court that my husband has deserted me for at least two consecutive years before filing the petition?

Answer: You may rely on evidence such as your chat history, messages, or any other communication records to show that both of you have had no contact or marital relationship for a continuous period of at least two years. In law, “desertion” refers to one spouse intentionally leaving the other without consent and abandoning the marital relationship.

Question 51
What happens if I successfully sue my husband’s adulterous partner? What if my claim fails?
If your claim is successful, the court may order the other party to pay you damages.

If your claim is unsuccessful, you may be ordered to pay the other party’s legal costs.

Question 52
Apart from adultery, what other grounds can I rely on to prove that the marriage has broken down and file a unilateral divorce petition?
Under Section 54(1) of the Law Reform (Marriage and Divorce) Act 1976, other grounds include:
Your spouse has behaved in such a way that you cannot reasonably be expected to continue living with him or her.
Your spouse has deserted you for a continuous period of at least two years immediately before the filing of the divorce petition.
Both parties have lived apart for a continuous period of at least two years immediately before the filing of the divorce petition.

Question 50
What kind of evidence can I use to prove that my husband has committed adultery?
Generally, adultery may be proven through the following types of evidence:
Circumstantial evidence
The birth of a child where the alleged father had no contact with the mother during the period of conception (used when alleging the wife’s adultery)
The child’s birth certificate showing both parties as the parents
Evidence that one party contracted a sexually transmitted disease from a third party
An admission of adultery by the adulterous party

Question 47
Must I have evidence of my husband’s adultery before I can bring a legal claim?
In most cases, the other party is unlikely to admit to committing adultery. Therefore, it is advisable to obtain evidence of the adultery.

However, it is important to note that, when proving adultery in court, you must satisfy the court that there is no other reasonable explanation apart from adultery (Beyond Reasonable Doubt).

Question 48
If my husband committed adultery only after we had separated, can I still take legal action against his adulterous partner?
Yes.

However, if the adultery occurred only after your marriage had already broken down, you cannot rely on that adultery as the ground for filing a unilateral divorce petition.

Question 44
If my husband has committed adultery, do I still need to live separately from him for two years before filing a unilateral divorce petition? Or can I file immediately?
You do not need to be separated for two years.

As long as you have evidence of your spouse’s adultery, you may file a unilateral divorce petition.

However, you must prove to the court that:
Your spouse’s adultery has made it intolerable for you to continue living together.
The adultery has caused the marriage to break down.

Question 45
Can I take legal action against the person with whom my husband committed adultery?

Question 41
Can I file a unilateral divorce petition after obtaining the Conciliation Certificate?
Yes. Once the Conciliation Certificate has been issued, you may proceed with filing a unilateral divorce petition in court.

Question 42
If my spouse refuses to attend the Conciliatory Body, will I still receive the Conciliation Certificate? Will this affect my unilateral divorce application?
Yes. Even if either party fails to attend the conciliation proceedings, the Conciliatory Body may still issue the Conciliation Certificate, stating that the conciliation has failed.

This will not prevent you from proceeding with a unilateral divorce petition.

Question 43
Must I be separated from my spouse for at least two years before filing a unilateral divorce petition?
No.

You only need to prove to the court that the marriage has broken down irretrievably.