Professional Divorce & Family Law Firm in KL & Selangor
Contact Ms. Arina Ong @ 016-342 8448
We have received a number of queries from our clients, seeking advice as they intend to divorce a foreign wife in Malaysia. The reasons are, amongst others, the wife has left the Matrimonial Home and her whereabouts is unknown; or where she refused to continue cohabitation with the husband in Malaysia after visiting her home country.
Therefore, this article will focus on the rights accorded to a non-Muslim husband to divorce a foreign wife in Malaysia since she has committed an act of desertion.
We’ll refer to the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) as well.
1) Is the husband entitled to seek for a divorce?
Yes. Provided the marriage has been registered in accordance with the law of Malaysia for a period of at least 2 years.
2) The wife has already absconded. How can the husband file for a divorce?
In such circumstances, the husband has to proceed with a non-mutual divorce.
File a single Petition for Divorce in the Court on the ground that the marriage has irretrievably broken down.
The husband must satisfy the Court that the wife has deserted him for a continuous period of at least 2 years immediately prior to the presentation of the Petition for Divorce.
[See: Section 54(1)(c) of the LRA]
3) What amounts to “desertion”?
The LRA 1976 is silent on the definition of “desertion”.
However, case law propounded that it means an act of separation of one spouse from the other with the intention of permanently bringing the state of marriage to an end without reasonable and proper course and without the permission of the deserted spouse. [See: B v P [1998] 5 MLJ 787]
There are 4 elements to prove desertion:
(a) de facto separation of the spouses;
(b) animus deserendi, that is, the intention of the part of the deserting spouse to remain separated permanently;
(c) absence of consent on the part of the deserted spouse; and
(d) absence of any reasonable cause for withdrawing from cohabitation on the part of the deserting spouse.
How can a husband divorce a foreign wife in Malaysia since she has deserted him?
4) Does the husband need to refer the matrimonial difficulty to a conciliatory body prior to presenting his Petition for Divorce?
In such circumstances, the husband does not need to apply to a conciliatory body.
[See: Section 106 of the LRA]
However, he is still required to obtain a Court Order which stipulates the exemption of the said requirement.
5) How to prove that the husband has been deserted by the foreign wife?
The burden of proof remains on the husband (who is the Petitioner).
It’s advisable for the husband to gather evidence as soon as he discovers that his wife has deserted him. Generally:
(a) Lodge a police report to state the material facts (for a record purpose so that a statutory period of 2 years of separation will start running);
(b) Notify the Immigration Department in writing;
(c) Terminate the wife’s visa (for e.g. spouse visa) where necessary;
(d) Keep a record of all the correspondences with the wife, such as call logs and WhatsApp conversations (especially the parts where the wife informed him that she does not wish to return home and continue their marriage);
(e) Check whether have kept a copy of the information page of the wife’s passport;
(f)Flight information of the wife leaving Malaysia (if it’s the husband who assisted in booking the flight).
6) Can the Court make an Order with regard to the children of the marriage in the absence of the foreign wife?
Yes.
Judicial precedent established that when dealing with matrimonial matters, the Judges tend to adopt a more investigative and inquisitorial approach.
Therefore, if the Judge is satisfied that there is indeed desertion on the part of the wife and all the cause papers are in order, then the Judge is entitled to decide appropriate reliefs in order to safeguard the interests of the children.
7) How long does it take to complete the process of divorce?
It may take around 4 to 6 months, up until the grant of Decree Nisi for Divorce.
8) Can the Court allow for a Decree Nisi for Divorce to be made absolute immediately?
In general, a Decree Nisi for Divorce shall only be made absolute after the expiration of 3 months from the date of hearing.
Nonetheless, the husband may apply for it to be made absolute immediately in view that the desertion has taken place for a certain period of time.
Section 61(1) of the LRA allows the Judge to exercise discretion on a case-by-case basis.
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MESSRS ARINA ONG & CO.
Advocates & Solicitors
G-13A-19, Residensi Seri Wahyu,
No. 68, Jalan Sibu,
Taman Wahyu,
68100 Kuala Lumpur.
H/P No.: +6016-342 8448
Fax No.: +603-2034 9466
Email : arina@ao-co.com