International Divorce & Family Law: Malaysia
British colonial influence in countries like Malaysia is illustrated by the impact English law still has on the territory. 1956 legislation enables Malaysian judges to apply English common law in family matters where no equivalent Malaysian law has been introduced.
As an international family law firm our clients include Malaysians resident in the UK, UK nationals with a Malaysian spouse and people who were married in Malaysia. Below are some of the things to bear in mind if you are getting a divorce and you or your estranged spouse have some connection to Malaysia.
Grounds For Divorce In Malaysia
For Malaysian courts to hear your divorce you must prove that the marriage has been registered in the country and you and your spouse are domiciled in Malaysia. It’s notable that a wife does not have her own domicile under Malaysian law. Instead she takes the same domicile as her husband.
Individuals can petition for divorce on the following grounds:
- Where one spouse converts to the Islamic faith
- No-fault mutual consent
- Irretrievable breakdown on the basis of one of five facts (broadly similar to the grounds for divorce in England and Wales)
Financial Aspects Of Malaysan Divorce
Malaysian courts have more latitude than courts in other countries when it comes to dividing assets on divorce. Broadly speaking courts will divide equally all assets acquired during the marriage – whether gained by the sole effort of one spouse or through the efforts of both husband and wife. But the court will take into account the contributions of each spouse toward acquisition of the asset.
Property owned by one spouse before the marriage will be treated as though it were acquired during the marriage (and divided equally) if substantial improvements have been made to it during the marriage. Importantly the courts don’t adopt a strict, formulaic approach to asset division. Instead the aim is to make a fair division of the assets owned at the time of the divorce
Pre Nuptial Agreements In Malaysia
Legally prenuptial agreements aren’t recognised by the courts in Malaysia. But the growth in popularity of both pre and post nuptial agreements has led courts using them as an indicator of the parties intentions as regards asset ownership and division. But they will always be subject to the court’s overarching authority.
In common with many jurisdictions the welfare of the child is the most important consideration when it comes to deciding where a child will live. In Malaysia there is a rebuttable presumption that a child under seven is better off living with the mother
Getting Advice On Malaysian Law
The case of Chai v Peng demonstrates the lengths to which some individuals will go to have their divorce decided by Malaysian rather than UK judges. That’s because in the UK judges are considered to be more generous to the financially weaker spouse. If you are a Malaysian living in the UK or have some connection to Malaysia and would like advice on how to issue proceedings in the UK Brookman can help.
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