Podcast: Family Law

I. If maintenance was paid before the divorce, can it continue after the divorce? Where, during the subsistence of the marriage, the husband had consistently and regularly provided the wife with maintenance (for example, by monthly bank transfers), the wife may, upon divorce, apply to the Court for continuing maintenance. The decisive issue is not merely whether the parties are divorced, but whether: such payments were made over a sustained period; the payments were intended to maintain the standard of living enjoyed during the marriage; and there is documentary proof (e.g. bank transfer records, statements, receipts).If the wife can demonstrate that this arrangement formed part of the parties’ established lifestyle, the Court will generally give it due consideration.

I. What can a wife do if her husband refuses to provide maintenance during the marriage? In Malaysia, a wife may apply to the Court under the Married Women and Children (Maintenance) Act 1950 to claim: maintenance for herself; and maintenance for the child(ren), including maintenance for illegitimate child(ren).The wife must file an application through a solicitor and set out her monthly living expenses. The husband will be given an opportunity to respond. After considering the parties’ affidavits and submissions, the Court may make an order determining: the monthly amount payable; when the order takes effect; and whether the order is to be backdated to cover months previously unpaid.

I. What amounts to “adultery”? Put simply, adultery refers to consensual sexual intercourse between two persons, where at least one party is married and the marriage is still subsisting. The key elements are: A voluntary sexual relationship; and One party is in an existing marriage. Because sexual intercourse is rarely witnessed or recorded by third parties, adultery is, in practice, notoriously difficult to prove in court.

Domestic Violence Is Not Limited to Physical Assault: Two Key Categories Generally, domestic violence may be understood in two broad categories: Physical violence: including acts such as assault, pushing, or causing bodily injury. Psychological or emotional abuse: including persistent humiliation, threats, verbal abuse, coercion, intimidation, and what is commonly described as “cold violence” or emotional neglect. Importantly, victims may include not only women, but also men. Children may also fall within the scope of protection, as domestic violence laws and procedures may apply to child victims as well.

1. Is attendance at JPN mandatory for every divorce? Not necessarily. Where both parties agree to divorce (and have reached agreement on the terms), the general process is: both parties negotiate and agree on the divorce terms (which must be lawful);the terms are reduced into writing, signed, and affirmed; the documents are filed in Court; both parties attend Court on the hearing date; and the Judge grants the divorce in accordance with the agreed terms. In such circumstances, there is generally no requirement to undergo the JPN reconciliation process. Attendance at JPN typically arises where :the divorce is unilateral (i.e., one party does not agree to divorce or the parties cannot reach agreement on the terms); in such cases, the matter usually proceeds through the JPN reconciliation process.

1. Definition: “Foreigner Adoption ”Generally, this may be understood in two situations:(A) One spouse is a foreigner and the other is a Malaysian citizen. This is commonly not treated as a “foreign adoption” in the strict sense, because the family is ordinarily residing in Malaysia. In such circumstances, the adoption is typically to be carried out in accordance with Malaysian procedures, without any material difference merely because one party is a foreigner.

When people hear “divorce lawyers” or “family law”, the first impression is often that we only handle divorces. In reality, many family law applications do not necessarily require a divorce. Today’s topic is an option that is closely related to divorce procedures but is not a divorce—Judicial Separation.

Many people hear the word “injunction” and immediately think of frozen bank accounts, travel bans, or asset freezes. Here, the focus is different. This is about injunctions involving children—specifically, controlling or preventing a child being taken out of Malaysia.In practice, child-related injunctions commonly fall into two directions:Permission for the child to travel abroad (under what conditions travel is allowed, how long, and when the child must be brought back) Prohibition on taking the child abroad (temporarily restricting the child from leaving Malaysia in certain circumstances)1. Why is a “no-travel” injunction needed? When parents are in the middle of a custody dispute or divorce proceedings, the child is often a central issue.If one party takes the child overseas, the child may fall outside the Malaysian court’s jurisdiction. Even if the court later grants custody to the other parent, enforcing that decision can become much more difficult. There may be other ways to address it later, but those usually involve foreign courts and foreign laws, which is a separate matter. The discussion here focuses on injunctions within the Malaysian court’s powers.

In Malaysia, adoption is not something you can do simply because you want to. It is a legal process centred on “the best interests of the child.” For non-Muslims, there are generally two common adoption routes: court adoption (through the courts) and the National Registration Department (JPN) adoption process. The two routes differ clearly in terms of time, conditions, and the resulting documents.