How to Divorce in Malaysia if Your Spouse Deserted You and Cannot be Found?
How To Divorce in Malaysia If Your Spouse Deserted You and Cannot be Found
Getting a divorce in Malaysia as a non-Muslim can be more challenging when your spouse has deserted you or cannot be found. Many people worry that they are stuck in the marriage just because their husband or wife has disappeared or gone “missing in action (MIA)”. This is not true.
Under Malaysian divorce law, you can still proceed with a divorce even if your spouse cannot be contacted or went missing. However, the process is usually longer and more complex because special court procedures must be followed.
So what should you do if your spouse has deserted you and your children (if any)? If you are ready to move on with your life, you may start by filing a single petition for divorce in Malaysia. You will need to prove a valid ground for divorce under section 54(1)(c) and/or section 54(1)(d) of the Law Reform (Marriage and Divorce) Act 1976, which covers desertion and living apart. Once these legal requirements are met, the court can still proceed with the divorce even if your spouse cannot be found.
Filing a Single Petition for Divorce
In such circumstances, worry not. You can still apply for a divorce by way of a single petition for divorce in Malaysia.
Process of Single Petition
Generally, before one can file for a single petition for divorce in Malaysia, it is necessary to go through the marriage counselling with the JPN required under the law. This is in order to allow parties to reconcile, if possible.
If the other party deserted you and cannot be found or contacted at all by any way, it is necessary to first file an application to the court to seek for exemption from the marriage counselling required under the law based on the fact that you are being deserted and the other party cannot be found or contacted at all.
Subsequently, if the court allows your application, then only you can proceed to file for a single petition for divorce where this is the actual process to apply for a divorce in Malaysia unilaterally.
Ground To File Single Petition
In such cases, you may want to rely on the ground of desertion for more than 2 years as well as the fact that your husband cannot be found at all. In addition, this petition may also include other grounds on why you are seeking a divorce.
Having said that, the court shall have full discretion to ensure that all reasonable means to contact or reach your spouse has been attempted including serving the divorce petition to the last known address of your spouse and advertising the divorce petition on a selected newspaper portal (or any other ways deemed reasonable as directed by the court).
Divorce Order
In these cases, your divorce lawyer shall guide you through the whole process in order to obtain a divorce order from the court by proving to the court that the marriage has irretrievably broken down due to the act of your spouse and the court is satisfied with the fact that your spouse deserted you completely more than 2 years.
This is also commonly known as uncontested single petition for divorce where the petition cannot be contested in any way since the other party cannot be found at all.
Key Takeaways
If your husband or wife has left you and cannot be found, you can still get divorced in Malaysia.
- You may file a single petition divorce in the Court (not joint).
- You must show that your spouse has deserted you for at least 2 years and/or both of you are separated for more than 2 years.
- The case can proceed even without your spouse attending court.
- The court may still decide on divorce, maintenance, and children issues based on available evidence.
If you have a similar situation and are seeking to get a divorce, you are encouraged to seek advice from our divorce lawyer in Malaysia on how to navigate the divorce process in the event your spouse cannot be contacted at all in Malaysia by filing a single petition for divorce.
FAQs: Divorce in Malaysia When Your Spouse is Missing Or Has Deserted You
Q1: Can I get a divorce if my spouse has deserted me and cannot be found?
Yes. Under Malaysian law, desertion for a continuous period of at least two years is a valid ground for divorce. If your spouse cannot be located, you may still proceed by filing a single petition for divorce.
Q2: What if I don’t know where my spouse lives now?
If your spouse cannot be found, your lawyer can apply for substituted service. This allows the court papers to be served in alternative ways, such as by newspaper advertisement, registered post to the last known address, or even email/WhatsApp (with court’s approval).
Q3: Do I still need my spouse’s consent to file for divorce?
No. In cases of desertion, consent is not required. You may file a single petition and proceed without your spouse’s knowledge.
Q4: How long must the desertion last before I can file?
The desertion must have lasted for at least 2 years continuously before the filing date.
Q5: How long will the process take if my spouse cannot be found?
The process may take longer than a normal divorce because the court needs to be satisfied that all reasonable efforts were made to locate and serve your spouse. On average, it can take 6-12 months, depending on complexity.
