Do You Need to Be Separated Before Filing for Divorce in Malaysia?
Quick Summary
For non-Muslim civil marriages, there is no legal requirement to stay separated before filing for divorce if both parties agree to the divorce terms. This is known as a joint petition divorce.
However, if the divorce is not agreed by both parties and one spouse wishes to file alone, separation for 2 continuous years can be used as one of the legal grounds for a single petition divorce.
It is also important to know that staying separated for many years does not automatically end a marriage. You are still legally married until the Malaysian court grants a divorce order.
Do You Need to Be Separated Before Filing for Divorce in Malaysia
Your marriage has reached its end point and you are thinking to file for a divorce in Malaysia. You may also be wondering whether do you need to be separated before filing for divorce in Malaysia.
Interestingly, this is one of the most common questions we received as a divorce lawyer. So, what is the relevant law for divorce in Malaysia and if separation is really needed before you engage a divorce lawyer?
To answer this question, it is important to point out that it is more of a personal choice to stay separated from your spouse or not. There is no specific law that states the need to stay physically separated from your spouse before you file for a divorce in Malaysia for non-Muslim. You may still apply for a divorce if you are still staying with your spouse as long as the divorce is mutual.
2 Years of Separation as a Ground for Divorce in Malaysia
That said, staying in separation for more than 2 years can be a ground for divorce if the divorce is not mutual (also known as single petition for divorce). Otherwise, there is no need to be separated before filing for a divorce if the divorce terms are agreed by both the husband and wife (also known as joint petition for divorce).
For instance, if you are constantly experiencing physical violence (or even verbal abuse) in a marriage and you cannot tolerate with the said violence, you have the choice to move away from your spouse before you decide to file for a divorce in Malaysia. You may then decide if the divorce will be a joint petition or single petition depending on whether if your spouse is agreeing to the divorce terms.
No ‘Automatic’ Divorce Even After More Than 2 Years of Separation in Malaysia
On one last note, it is also crucial to emphasize that even if parties are remained separated for more than 2 years, their marital status will still remain as married. That’s right. There is no ‘automatic’ divorce in Malaysia even if they are separated for more than 2 years and parties are still required to file petition for divorce where only the Malaysian court shall have the power to dissolve the marriage then.
In conclusion, here are the key facts you should know:
- Whether to be separated or not before a divorce, it is more of a personal choice
- Staying separated for more than 2 years can be a ground to file for a divorce later on (you need reason before you can file a single petition for divorce)
- There is no need to be separated and you do not need to provide any reason for a divorce if the divorce is mutual (joint petition for divorce)
In case of any doubt, it is advisable to seek for advice from a divorce lawyer to ensure that you are taking the right approach to end your marriage legally in Malaysia. In the event if the divorce is not mutual, it is best to seek for divorce settlement between parties in order to save time and cost for divorce.
5 FAQs About Separation Before Divorce in Malaysia
1. Do I need to be separated before filing for divorce in Malaysia?
No. If both husband and wife agree to the divorce terms, there is no need to stay separated before filing for divorce.
2. Can I file for divorce if I am still living with my spouse?
Yes. You may still file for divorce even if you are staying under the same roof, especially if the divorce is mutual (joint petition).
3. When does separation become important for divorce?
Separation becomes important if the divorce is not mutual. Living separately for 2 continuous years can be one of the legal grounds to file a single petition divorce.
4. Does being separated for 2 years mean I am automatically divorced?
No. There is no automatic divorce in Malaysia. You must still file a divorce petition in court to legally dissolve the marriage.
5. What should I do if my spouse does not agree to the divorce?
You can still proceed through a single petition divorce depending on your circumstances. Here are 4 grounds you may rely on to file a single petition for divorce in Malaysia.
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