About Divorce

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MARRIAGE CONTRACTED IN FOREIGN JURISDICTION

Question:

Can a divorce be effected in Malaysia if the marriage was contracted in a foreign country under foreign laws?

Answer:

It depends. The Court's powers to make such an order for divorce is subject to sections 48(1) and 49(1) of the Law Reform (Marriage and Divorce) Act 1976.

Under section 48(1)(a) read with 48(1)(c), the Court cannot make an order of divorce unless the marriage is deemed as registered under the Act, and the domicile of both parties at the time the petition is presented is in Malaysia.

Under section 48(1)(b) read with 48(1)(c), the Court cannot make an order of divorce unless the marriage was solemnized under a law that provided (or had the like effect) that the marriage was to be monogamous, and the domicile of both parties at the time the petition is presented is in Malaysia.

Under section 49(1)(a), a woman whose husband is not domiciled in Malaysia or is not staying in Malaysia, can seek divorce provided her husband was domiciled in Malaysia but subsequently abandoned her, or was subsequently deported from Malaysia under laws related to deportation.

Under section 49(1)(b), a woman whose husband is not domiciled in Malaysia or is not staying in Malaysia, can seek divorce provided she is staying in Malaysia and had ordinarily stayed in Malaysia for a period of two years prior to the filing of the Petition.

The wife must qualify under section 48(1) of the Act before she is allowed to rely on section 49(1) of the same Act.

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ON PRENUPTIAL AGREEMENTS

Question:

Are prenuptial agreements enforceable in Malaysia?

Answer:

Practically speaking the Malaysian courts have not had much opportunities to consider prenuptial contracts. Prenuptial contracts are typically designed to protect the wealth of one party in the event of a divorce. Malaysian courts are possessed with powers to order for division of property, maintenance, etc. according to the discretion of the judge. The following provisions are relevant.

In granting a decree of divorce or judicial separation, the Courts have powers under section 76(1) of the Law Reform (Marriage and Divorce) Act 1976 to order the division between the parties of any assets acquired during the marriage by their joint efforts, or to order the sale of such assets and the division of the proceeds of the sale to both parties.

In granting a decree of divorce or judicial separation, the Courts have powers under section 76(3) of the Law Reform (Marriage and Divorce) Act 1976 to order the division between the parties of any assets acquired during the marriage by the sole efforts of one party, or to order the sale of such assets and the division of the proceeds of the sale to both parties.

Section 56 of the Law Reform (Marriage and Divorce) Act 1976 allows for provisions to be made under rules of court, enabling parties of a divorce, to apply before or after the divorce is presented, to refer to the court any agreement or arrangement made or proposed to be made between them. James Foong J in Lim Thian Kiat v Teresa Haesook Lim [1998] 2 MLJ 102 held that O. 33 r. 2 of the Rules of High Court is included in the meaning of "rules of court" of section 56 LRA. Hence in a matrimonial dispute, agreements or arrangements may be referred to the court for consideration.

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