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Whether the proceedings in the foreign court are vexatious and oppressive. Where Malaysia is the natural forum, an anti-suit injunction does not offend the principles of comity. The anti-suit injunction is made in personam, against the party in contempt who has disobeyed the order of the court see Societe Nationale Industrielle Aerospatiale In Malaysia, as a result of the dual system of laws relating to personal law, situations can arise where it may be necessary to apply in the civil court for an anti-suit injunction to restrain proceedings in the Syariah court.

Are foreign nationals treated differently on divorce? The law applied would be the Malaysian law under the LRA and not any other law. What are the requirements for service of divorce, financial and children proceedings in your jurisdiction? Applications relating only to children and maintenance can be initiated by way of an originating summons. Service is generally either by personal service or by ordinary post, registered post or courier.

Currently, electronic service by email or otherwise is not accepted. Petitions must be served either personally or by post, but personal service cannot be effected by the petitioner. To what extent are pre- and post-nuptial agreements binding? The following principles apply: The ultimate power resides in the court to order division of matrimonial assets and maintenance. The court is statutorily bound to consider the factors set out in the LRA.

In relation to the division of matrimonial assets, these factors do not include a provision allowing the court discretion to consider any agreements between the parties. The authors consider that pre-nuptial agreements are bound by the common law position of being contrary to public policy, are not binding and cannot oust the jurisdiction of the court.

The authors consider that courts may be persuaded to consider the intention of parties and their respective financial positions as expressed in any such pre-nuptial or post-nuptial agreements, but subject always to the provisions of the LRA, that any such agreement cannot oust the court s jurisdiction. Do matrimonial regimes exist in your jurisdiction and is there a default matrimonial property regime? How are foreign separation of property agreements and pre- and post-nuptial agreements treated by the courts in your jurisdiction?

There is no provision in the LRA allowing for any agreements to be considered in relation to the division of matrimonial assets, whether foreign or otherwise. Marriages A marriage contracted outside Malaysia is recognised as valid if all of the following apply: It is contracted in a form required or permitted by the law of the country where it is contracted.

Each of the parties had, at the time of the marriage, capacity to marry under the law of the country of his or her domicile. Where either of the parties is a citizen of or is domiciled in Malaysia, both parties had capacity to marry according to the LRA. This is an administrative process.

Where there is foreign divorce or annulment by a court of competent jurisdiction outside Malaysia of a marriage not solemnised under the LRA, a party can apply to court for an order recognising that foreign decree. This requires an application to the High Court by a Petition for Declaration. Civil partnerships Civil partnerships, including foreign civil partnerships, are not recognised in Malaysia. What are the grounds for divorce?

Petitions for divorce must not be presented to the court before the expiration of two years from the date of the marriage specified period. An application can be made to allow presentation of a divorce petition within the specified period where there are exceptional circumstances or hardship suffered by the petitioner. A petition for divorce can be brought on the following grounds LRA : Dissolution on the ground that one party to the marriage has converted to Islam.

By an amendment to the LRA, an application can now be made by either party to the marriage when previously only the non-converting spouse could petition for divorce.

Dissolution by mutual consent by presenting a joint petition with proper provisions agreed in relation to custody of children, maintenance and division of matrimonial assets.

In the case of unilateral petitions, petitions for divorce must not be presented unless the matrimonial difficulty has first been referred to a conciliatory body and that body has certified that it has failed to reconcile the parties. Exceptions to this are where the: Petitioner has been deserted by and does not know the whereabouts of the other spouse.

Respondent is residing abroad and unlikely to enter the jurisdiction within the next six months. Respondent has wilfully failed to attend before a conciliatory body. Respondent is imprisoned for a term of five years or more. Respondent is suffering from incurable mental illness.

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Court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable. Where the exceptions are applicable, an application must first be made to court to obtain leave to dispense with reference to a conciliatory body. Nullity A petition for a decree of nullity can be brought where a marriage is void or voidable.

The marriage is void if: At the time of the marriage either party was already lawfully married, the former husband or wife of the party was living at the time of the marriage, and the former marriage was then in force.

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The parties are within the prohibited degrees of relationship, unless the Chief Minister grants a special licence.

The parties are not male and female respectively. The marriage is voidable if: The marriage has not been consummated owing to the incapacity of either party to consummate it. The marriage has not been consummated owing to the wilful refusal of the respondent to consummate it.

Either party did not validly consent to the marriage, whether in consequence of duress, mistake, unsoundness of mind or otherwise.

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At the time of marriage, the respondent was suffering from venereal disease in a communicable form. At the time of marriage, the respondent was pregnant by some person other than the petitioner. However, the court will not grant a decree of nullity where the marriage is voidable if both: The petitioner with knowledge that it was open to him or her to have the marriage avoided, so conducted himself or herself as to lead the respondent reasonably to believe that he or she would not seek to do so.

It would be unjust to the respondent to grant the decree. Judicial separation A petition for judicial separation can be presented on the ground that the marriage has broken down by reason of one or more of the same four facts that apply to a unilateral petition for divorce see above, Divorce. What is the procedure and timeline for divorce? A Petition by mutual consent can be dealt with expeditiously, even within a month. However where the divorce is acrimonious, with many interlocutory applications and a full trial, it can take up to three years.

However where the proceeding is acrimonious, with many interlocutory applications and a full trial, it can take up to three years. Are religious marriages and divorces recognised in your jurisdiction? Native and aboriginal customary marriages and divorces remain valid if they are valid under the relevant native customary law or aboriginal custom unless the couple elect to marry under the LRA. Muslim marriages continue to be celebrated as a religious marriage.

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In Malaysia, each state has its own sharia enactment and Syariah court to regulate the marriages and divorces of Muslim persons residing in the respective state. Each Muslim marriage will be solemnised by a Kadi and will then be registered in accordance with the sharia enactments where the marriage has taken place. Such marriage is recognised as valid and enforceable marriage in the Syariah court. Where a marriage is not registered in accordance with the relevant sharia enactment, the couple will not be able to seek any remedy or recourse in the Syariah court.

A Muslim Malaysian couple who have had their marriage solemnised abroad in accordance with Islamic principles must register their marriage in the Syariah court for these marriages to be validly recognised. If the couple fail to register their marriage but the solemnisation of their marriage is performed in accordance with the Islamic principles, they may still be considered as being married from the Islamic point of view.

They however may be penalised for not registering their marriage and will be precluded from availing themselves of the rights and remedies under the respective state sharia enactments. All divorces of the marriages of Muslims persons in Malaysia are regulated by the respective state sharia enactments and must be undertaken in the Syariah court. While traditionally within the Islamic precepts that a Muslim man has the right to unilaterally pronounce talaq or divorce, such a pronouncement must be made in the Syariah court.

The validity of talaq pronounced outside court must be affirmed by the Syariah court. Any person who pronounces talaq outside the Syariah court commits an offence. However, where a marriage that has been solemnised in the Federal Territory is dissolved by an order of a court of competent jurisdiction outside the Federal Territory, either person can apply to the appropriate Registrar and to the Chief Registrar for registration of the divorce. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

Whether jointly or solely acquired, the court must now incline towards equality of division of any assets acquired during the marriage, subject to the considerations of: The extent of the contributions made by each party in money, property or work towards the acquisition of the assets or payment of expenses for the benefit of the family.

The extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family. Any debts owing by either party which were contracted for their joint benefit. The needs of the parties minor children. Assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.

Assets have been widely interpreted and include: Movable and immovable property. Insurance and retirement funds, including the Employees Provident Fund.

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Assets on proof in the names of nominees or held on trust. What factors are relevant to the exercise of the court s powers? The following principles can be discerned from Malaysian cases: The parties matrimonial assets are pooled together and subjected to division. The party claiming any asset must prove that the asset was acquired by the parties during the subsistence of the marriage. The court endeavours to reach a fair and equitable outcome in each case.

The court does not carry out an accounting of all the assets acquired or improved during the marriage and the income from those assets, nor a determination of who had benefitted more or less, and then award a shortfall to the party found to have benefitted less, on the basis that marriage is not a business enterprise. This case is pending an appeal.

What is the court s current position on the division of assets? During the subsistence of a marriage, the matrimonial home even if acquired before the marriage and everything which is put into it by either spouse is considered a matrimonial asset.

This includes the purchase of kitchen cabinets, furniture and so on, payment of staff salaries, keeping, maintaining and servicing the house as a going concern.

How does ongoing spousal maintenance operate following marital breakdown? If a man neglects or refuses to maintain his wife, a court, on due proof of this, can order him to pay a reasonable monthly maintenance to his wife, in proportion to his means.

However, if any person against whom such an order has been applied for or made, offers to maintain his wife on condition of her living with him, and his wife refuses to do so, the court considers any grounds of refusal stated by the wife.

A wife is not entitled to maintenance under the MWCMA if she is living in adultery or if, without any sufficient reason, she refuses to live with her husband. The court can order a man to pay maintenance to his wife during the course of any matrimonial proceedings, and on or subsequent to the grant of a decree of divorce or judicial separation. The court has the corresponding power to order a woman to pay maintenance to her husband or former husband where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the court is satisfied that having regard to her means it is "reasonable so to order".

The court can order a person liable to pay maintenance to secure the whole or any part of that maintenance by vesting property in trustees in trust for the settler. Unsecured maintenance expires on the death of the husband or wife, and secured maintenance expires on the death of the spouse in whose favour it was made. Maintenance ceases on the remarriage of the spouse receiving maintenance or living in adultery with any other person.

Is it common for maintenance to be awarded on marital breakdown? The LRA only provides for orders of monthly maintenance for a spouse and does not have provision for the court to make an order for a lump sum in lieu of monthly maintenance. Where the wife was a home-maker during the marriage and would have difficulty seeking employment on divorce, the Malaysian court will generally make an order of maintenance in favour of the wife. What is the court s current position on maintenance on marital breakdown?

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In assessing maintenance, the Malaysian court considers primarily the means and needs of the parties and the standard of living the parties were accustomed to during the marriage. There is no rigid formula. Although the Royal Commission in their Report leading up to the LRA recommended recognising irretrievable breakdown of the marriage as the sole ground for dissolution, the final Act still retained elements of fault in determining breakdown.

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