3 Divorce Laws In Malaysia That Women Should Know
Getting a divorce is never easy for any party. This is more so when children are involved. That is why it is important to know your rights under the Malaysian laws in the event of a divorce or if you are contemplating to get a divorce. Here are 3 divorce laws in Malaysia that women should know.
- Maintenance of Wife/Husband (Section 77(1), Section 77 (2), Section 78 of LRA 1976)
Merely because the marriage has come to an end does not mean that a woman’s ex-husband no longer has any obligation to maintain her. Generally, the courts are of the view that the ex-wife who has invested many years of her life in the relationship may still be in need of reasonable maintenance. This is especially the case when the wife has played the role of the housewife. Having to forego her chance of an independent career it would be most inequitable if the ex-husband’s obligation came to an end at the end of the marriage.
As mentioned in our article on “3 Divorce Laws In Malaysia That Men Should Know”, the court would look at the situations on the means and the needs of the wife/ex-wife. The quantum of the maintenance will also be adjusted according to the income of the wife, if any.
Section 78 of the Law Reform (Marriage & Divorce) Act 1976 (LRA 1976) provides for the assessment of maintenance based primarily in the means and needs of the parties regardless of the proportion of such maintenance bears to the income of the husband/wife but having regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.
However, it should be note that it is not necessary that it is only the husband that have to pay the wife spousal maintenance after a divorce. Under Section 77(2) LRA 1976, The court may order the wife to pay maintenance to her husband/ex-husband only if he is incapable of earning a livelihood by reason of mental or physical injury or ill-health and that the court is satisfied that having regards her means it is reasonable to order.
- Custody of Children (Section 88, Section 91 LRA 1976, Section 5 Guardianship of Infants Act 1961)
After a divorce, both parties would have an equal right to apply for custody of the child. This is provided for in Section 5 of the Guardianship of Infants Act 1961, where the mother shall have the same rights as the father when it comes to guardianship as well as custody of the child.
Section 88 of the LRA 1976 states that court may order to place a child in the custody of either the father or mother. In exceptional circumstances, the court may also order the relative or child welfare officers to take custody of the child if it is unsuitable for the child to be entrusted to either parent.
Further, the law presumes that it is for the good of a child below the age of 7 years to be with his or her mother. Section 91 LRA 1976 also states that mother shall be entitled to custody of the legitimate child in absence of any agreement or court order to the contrary.
This means that the mother will have more chance to get the custody of a child of tender age unless the father is able to show that the mother is an unsuitable parent and it will be detrimental to the child’s welfare if custody is to be given to the mother.
The court is also reluctant to make changes to a child’s current life by ordering a change of custody after or during the divorce. Also, the law provides that the wishes of the parents and the child are factors to be considered in deciding on the right of custody, ultimately, priority is given to the welfare of the child having regard to the situation as a whole.
- Division of matrimonial assets (Section 76 LRA 1976)
There is a common misconception that when a couple files for a divorce, the jointly owned assets will be divided equally regardless of the circumstances. This is not exactly the case in Malaysia as the distribution of matrimonial assets is governed under Section 76 of the LRA 1976.
Generally, the court will lean towards the principle of equality of division when an asset was jointly acquired by the parties during the marriage. There are factors to be considered by the court before making an order of distribution, such as the extent of monetary contribution or work towards acquiring that particular asset, any debts owed by either party for their joint benefit and if the needs of minor children, if any.
In cases where an asset was acquired under the sole effort of one party during the marriage, the law also provides that the court shall consider the extent of the non-monetary contribution made by the other party towards the home or caring of the family and also the needs of the minor children, if any, and order to divide the assets or even the proceeds of sale of the same in reasonable proportions. In other words, even when a housewife did not contribute monetarily in purchasing a house during the marriage, she may still be entitled a portion of the house as she has made significant contribution of time and effort in caring of the family.
The law also explicitly provides that an asset acquired during the marriage also include those who are owned before the marriage by one party before getting married which has been substantially improved by another party or jointly by both during the marriage. For example, a car that was purchased by a man before marriage and the wife has been paying for the car instalment or insurance of the car. Nevertheless, the party who made more monetary contributions and put in more effort to acquire the assets would usually receive a greater portion.
This article is contributed by Siow Pey Yiaw.
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