Procedure on Joint Petition

Joint Petition: ALL YOU NEED TO KNOW ABOUT UNCONTESTED DIVORCE

In the past, married couples may have arguments that the lack of time had corroded their relationship. In light of this Coronavirus Disease 2019 (COVID-19) pandemic, the new norm now encourages everyone to stay at home, or at initial, makes it compulsory to stay at home.

With this, married couples could actually be with their loved ones all the time however the recent facts and statistics have suggested that time is not the sole factor that leads to a breakdown of a relationship.

In 2019, the number of divorce cases recorded was 56,975 which had increased by 12% in comparison to in 2018, where the number of divorce cases recorded is 50,862. To make matter worse, there were only 49,965 divorce cases in Malaysia in 2017. As such, it is safe to say that in every hour in 2019, there was at least six to seven breakdown of marriage happening in Malaysia.

It is therefore believed that when everyone had to stay at home, some couple take it as a honeymoon period which allows them to build their relationship whilst others may see it as a nightmare due to conflicts and disagreements arising when they have too much time together. This is further exacerbated when some may have to live in a domestic violent household during the entire “Stay at Home Order”.

As such, divorce cases has spiked significantly during this pandemic.

In general, parties may file for a divorce via a single petition or a joint petition. In this article, I will address on the common FAQs about a joint petition.

What is a Joint Petition?

Joint petitions are relatively straightforward because parties do not have to prove that there is a breakdown of marriage i.e. to establish that they could no longer live with one another as one household. The court will eventually allow the divorce petition so long as both parties agree to the divorce, that there is a breakdown of marriage, and where applicable, the arrangement of assets, maintenance, child custody and guardianship.

Divorce by way of a joint petition provided under Section 52 of the Law Reform (Marriage & Divorce) Act 1976 is uncontested because both parties mutually agree to the divorce and the terms such as maintenance, assets, child custody and guardianship. The terms agreed by spouses will be clearly stated in the joint petition which will be filed in the state court where the marriage took place.

Who is applicable?

Divorce by way of a joint petition is only applicable to non-Muslims in Malaysia.

Is counselling session necessary for a Joint Petition?

In a joint petition, parties are not obligated to attend marriage counselling at the National Registration Department.

What is the advantage of Joint Petition?

A joint petition saves time and cost as compared to a single petition which causes emotional stress towards the spouses and the children.

What are the requirements to file a Joint Petition?

1. Married for at least two (2) years
2. Marriage must have been registered or deemed to be registered under the LRA
3. Parties must be domiciled in Malaysia
4. Parties must agree to all the divorce terms regarding maintenance (spouse and children, if any), matrimonial assets (if any), custody, care and control as well as access to children (if any)

What are the documents required to file a Joint Petition?

1. Marriage Certificate
2. Identification Card
3. Child’s Birth Certificate (if any)
4. Land Title (if any)

What are the terms to include in the Joint Petition?

In a joint petition, the court will have to be satisfied that arrangement for the child and a proper provision is made for the wife/husband (where applicable) before granting an order for divorce.

1. The spousal maintenance (if agreed upon)
2. The custody of the children (if any)
3. The maintenance for the children (if any)
4. The matrimonial assets (if any)

What are the cause papers to be filed in court?

1. Joint Petition
2. Affidavit
3. Statement as to Arrangements for Children (if any)
4. Appointment of Solicitor
5. Decree Nisi
6. Order
7. Decree Nisi Absolute

The procedure for Joint Petition

When will the court fix the hearing date?

Upon filing all relevant cause papers duly signed by both parties at the High Court, a hearing will be fixed in approximately 1 to 2 months after the filing of the cause papers.

Who is required to attend the hearing in the Court?

Both parties are required to attend the court on the hearing date. The parties’ solicitors will also be present on the hearing date.

Can the parties be absent for the hearing at the Court?

Only one of the two parties may be exempted from attending the hearing by filing the affidavit of non-appearance to the court before the hearing date provided that he has a good and valid reason for his absence.

Should the parties arrive early for the hearing?

On the hearing day itself, it is advisable for both parties to arrive to avoid any unforeseen circumstances.

How should the parties dress for the hearing?

Both parties are required to dress appropriately in formal attire.

What should the parties bring to the Court?

Parties are required to bring along the original identification card when attending the court.

What should the parties do after arriving at the Court?

Upon arriving at the court, parties are required to contact your solicitors and provide the identification card to your solicitors to register before the court interpreter.

What is the procedure when the parties’ case is called?

When the parties’ case is called, the parties’ solicitors will read out the terms of the joint petition before the High Court judge. The High Court judge will then confirm with both parties the consent and agreed terms. Upon being satisfied that both parties understand the terms and freely consent to the terms stated in the joint petition, the High Court judge will grant the order in terms.

What happens after the hearing?

The parties’ solicitors will file the Decree Nisi and Order for divorce to the court.

When can the parties receive the Certificate for Divorce?

The divorce will then be made absolute after a 3 months cooling period. Thereafter, the parties will be formally divorced after the Decree Nisi Absolute is granted by the Court.

Can the parties waive the period of 3 months cooling period?

The 3 months cooling period can be exempted with good reasons provided to the court. However, such application must be made before the hearing date.

What is the purpose of 3 months cooling period?

The 3 months cooling period allows the parties to think rationally about their decision. Should the parties regret their decision/ where the marriage has a better turnaround, the parties may withdraw their divorce petition.

How long does it take to obtain a divorce decree?

The whole procedure takes approximately 5 to 6 months to complete.

Can the parties remarry after the divorce?

The parties may only remarry after the Decree Nisi is made absolute. No spouses are allowed to remarry before the Decree Nisi is made absolute.

Conclusion

Divorce Proceedings can be very complicated. Hence, it is always best to consult a lawyer to have the best advice and better understanding of what options you have in resolving your issues.

This article is written by 

Sharon Lim Yun Zheng
Associate, Low & Partners