Divorce was once perceived as a taboo subject, but in recent years it has become increasingly common for couples in unhappy marriages to opt for divorce rather than remain in a marriage that is clearly irretrievably broken down. According to Malaysia’s Statistics Department, divorce cases increased significantly by 43.1%, from 43,936 in 2021 to 62,890 last year. This raises an important question: why do people choose divorce and is it truly worth ending a marital relationship?
Research has shown that marital conflict can have significant negative effects on the health of both spouses. A study conducted by the universities of Nevada and Michigan found that ongoing conflict leads to physical symptoms such as changes in appetite and an increased release of stress hormones. Staying in an unhappy marriage can also harm children’s well-being, potentially leading to internalised disorders such as anxiety, depression, and social withdrawal. In one experiment by the Institute of Learning & Brain Sciences, a playful toddler became silent and disengaged after witnessing an adult arguing loudly on a phone call.
In Malaysia, the Law Reform (Marriage and Divorce) Act 1976 governs marriages and divorces for non-Muslims. Divorce applications can be filed jointly by joint petition or unilateral petition by under Section 50(1), provided both parties were married for at least two years at the time of the petition unless leave of court.
Grounds for divorce – single petition
The sole ground for divorce is that the marriage has irretrievably broken down. Under Section 54, this can be proven by establishing one of the following:-
- Adultery;
- Behaviour that makes it unreasonable to continue living together;
- Desertion for a period of two years;
- Separation for at least two years.
In a notable case, HCL v. PTL & Anor [2024] 5 CLJ 117, the petitioner had voluntarily signed a marital agreement permitting the respondent to maintain a relationship with one mistress at any given time. Since the petitioner failed to provide evidence of withdrawing her consent, the agreement was upheld as valid by the court.
Section 51 also allows conversation to Islam as a ground for divorce on condition that the other party who has not so converted (non-Muslim spouse) and no petition under this section presented before the expiration of the period of three months from the date of the conversion.
Custody of Children
One may question how custodianship of child is considered by the court. Under a joint petition, both spouses reach consensus to the terms and condition of divorce including the custodianship of children. However, the custodianship of child under unilateral petition is different. The court must consider various factors such as welfare of the children, the wishes of the parents, the wishes of the child if the child is eligible to express an independent opinion.
Section 88(3) establishes a rebuttable presumption that children under seven years old should be placed in the mother’s custody. For a Husband Petitioner to rebut this presumption, he must establish that the Wife Petitioner is an unfit mother. For example, Thanaletchimy Batamallai v. Vijaya Kumar Kassinathan [2018] 8 CLJ 61 provides strong grounds are required to rebut this presumption on a balance of probabilities, by adducing evidence to convince this Court that the Applicant should be denied guardianship, custody, care and control of the Child, on the ground that she was an unfit mother.
For children over the age of seven, the court presumes they are capable of forming independent opinions, as outlined in Viran a/l Nagapan v. Deepa a/p Subramaniam and other appeals [2016] MLJU 05. However, this presumption is subject to extrinsic factors and rebuttal based on the specifics of each case. The paramount consideration is always the child’s welfare, which overrides parental rights if they conflict (Teh Eng Kim v. Yew Peng Siong [1997] 1 MLJ 234).
Furthermore, Section 96 empowers the court to vary custody or maintenance orders that has been made if there is evidence of any misrepresentation, mistakes of fact, or there has been material change in the circumstances.
Division of matrimonial assets
Divorce benefits parties in terms of property division and financial allowances subject to the specifics of the marriage. This is especially crucial when one partner has contributed financially while the other has focused on non-monetary aspects, such as caregiving.
Under Section 76, the court has the power to order the division of matrimonial assets. The court must regard the following factors such as the extent of the contributions made by each party in money, property or work towards the acquiring of the assets, (b) any debts owing by either party which were contracted for their joint benefit and the needs of the minor children, if any, of the marriage and subject to those considerations, the court shall incline towards equality of division.
It is important to take note that the court has the power to order division including assets acquired during the marriage by joint efforts, by the sole effort of one party to the marriage and 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.
In terms of maintenance of spouse, Section 77 empowers the court to order a man to pay his wife or former wife during the course of any matrimonial proceedings, when granting or subsequent to the grant of a decree of divorce or judicial separation or if, after a decree declaring her presumed to be dead she is found to be alive. This provision also extends to women, where the court may order a woman to pay maintenance to her husband or former husband if 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.
Marriage Counselling / Couples Therapy
It is advised that couples should consider all available options to resolve marital conflicts before proceeding with divorce. For instance, marriage counselling or couples therapy provides a safe space for open communication, fostering a deeper understanding between spouses and potentially mending the relationship.
Section 55 (1) provides provision may be made by rules of court for requiring that before the presentation of a petition for divorce the petitioner shall have recourse to the assistance and advice of such persons or bodies as may be made available for the purpose of effecting a reconciliation between parties to a marriage who have become estranged.
The provision above imposes requirement on petitioner to attend marriage counselling through authorised bodies such as Marriage Tribunal under the Jabatan Pendaftaran Negara (JPN). However, parties may still apply for exemption from seeking marriage counselling provided one of the grounds under Section 54 is established.
Nevertheless, divorce remains a practical and often necessary solution to address irreparable differences between spouses. When reconciliation is no longer feasible, divorce provides a structured legal framework to help both parties move forward with their lives in a fair and organized manner. More importantly, it serves as a pathway to end resentment and bitterness while reclaiming self-identity and autonomy. Furthermore, it provides children the opportunity to grow and develop in a healthier environment.