How to get divorced within 2 years in Malaysia?
How to get divorced within 2 years in Malaysia and what are the ‘exceptional circumstances’ to get divorced within 2 years?
There is some truth in the common misconception that “you MUST be married for two years or more before you can get a divorce”, but that is just a glimpse of the bigger picture. For divorce cases in Malaysia, there is a prerequisite in that the parties to the marriage must have been married for at least two years before they can apply for divorce. This law helps to prevent couples from making hasty or impulsive decisions about ending the marriage, giving them ample time to think carefully and thoroughly about the relationship, smooth out the rough patches in the marriage, or perhaps even fixing and saving the marriage eventually.
But what if you are married for less than two years, and you are already thinking about getting a divorce? Actually, while the law aims to protect the sanctity of a marriage with the two-year rule, it is not definite. There is an exception here: if the party who intends to apply for divorce can prove that there were exceptional circumstances or hardship suffered in the course of the marriage, the Judge may grant permission for that party to present the divorce petition to court (Section 50(2) of the Law Reform (Marriage and Divorce) Act 1976). So, there IS a possibility that you can apply for a divorce even though your marriage subsisted for less than two years.
What constitutes “exceptional circumstances or hardship” then? This may include physical and mental abuse, adultery, cruelty and domestic violence by one spouse to the other. We can have a better understanding of this phrase through the case of Kiranjit Kaur a/p Kalwant Singh v Chandok Narinderpal Singh  3 CLJ 724, whereby the court agreed that the husband’s act of threatening and slandering the wife in a blog posting amounts to “exceptional circumstances”. In reaching its decision, the court also took into consideration the following issues:
- when compared to the “normal” and expected behaviour of married couples in general, and also taking into account the relevant circumstances of the given situation, whether the hardship or depravity suffered by the wife was out of the ordinary;
- that the “exceptional hardship” caused is not only past hardship, but is present and would continue to happen in the future;
- that the conduct in question must be an exceptional hardship on the part of the complaining party. For instance, the act of adultery by itself may not be exceptional. However, if combined with other aggravating acts such neglect or cruelty, then those offences would be of an unusually serious nature and would suffice as exceptional hardship; and
- whether the hardship was founded on past behaviour, and there was no more continuing or present exceptional hardship. If so, the spouse may not apply for divorce within two years of the marriage.
In this case, the court has to decide whether the hardship suffered by the wife was out of the ordinary. Here, the slanderous blog posting has deeply humiliated the wife, severely damaged her reputation and caused her misery due to the borderless nature of the internet, and would continue to do so even after being removed from the internet. The wife was found to have suffered from mental stress and nervous breakdown as a result. Of course, the wife satisfied the test for “exceptional circumstances” and the court granted the wife the exception to apply for divorce before the two-year period expires.
Apart from the considerations mentioned above, when determining “exceptional circumstances or hardship”, the court would also have regard to the interests of the child of the marriage (if any) and whether there is a chance for reconciliation between the parties before the expiration of two years from the date of the marriage.
Marriage, in the eyes of the law, is an important institution of society, and parties seeking to dissolve their marriage are encouraged to attempt for reconciliation. Hence, the two-year bar for divorce is a strict one. Nevertheless, it would be futile for the law to preserve a marriage that puts a party in extreme agony and has irretrievably broken down.
Therefore, if you think you are suffering from your marriage, and the facts of your situation fit the description of “exceptional circumstances or hardship”, you may seek legal assistance to file for a divorce within two years of the marriage.
By Nicole Lee Yu Chen of TYH & Co.
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