Love, Law, and Letting Go: A Fresh Take on Divorce in Malaysia

The trend of embracing married life and rushing into a marriage in today’s generation is not something bizarre these days considering how social media influences the mindsets of society into believing that marriage is solely enjoyment which often leads to unrealistic expectations about married life. Whereas, in reality, it involves managing their daily lives while carrying the weight of being someone’s partner. Such ‘unrealistic expectations’ are among the primary reasons why many newlyweds, especially young couples choose to dissolve their marriages through divorce. However, the issue of dissolving marriage by way of divorce is more accepted by society, reflecting a shift in societal views which contrasts to the past, when divorce was less accepted and failed marriages were often stigmatized. [1]

In Malaysia, divorce is governed by two legal systems which will be discussed later.

DIVORCE IN CIVIL LAW UNDER LRA

The Law Reform (Marriage and Divorce) Act 1976 (LRA) is the primary legislation governing non-Muslim marriages and divorces in Malaysia, which came into force on 1 March 1982. Under the LRA, there are three grounds for divorce.

First, under Section 51, where one party to the marriage has converted to Islam, only the spouse who has not converted may petition for divorce. Second, under Section 52, divorce may be petitioned if both parties mutually consent to the dissolution of the marriage; however, this can only be done after two years from the date of marriage. Third, under Section 53, a divorce may be granted if the marriage has irretrievably broken down. To prove this, grounds such as adultery, unreasonable behavior, desertion, or living apart must be established. [2]

In L v L [1956], the petitioner sought a decree of nullity, alleging the respondent was incapable of consummating the marriage, despite no physical defects. Married in 1953, lived together for two years without consummation. Medical reports confirmed both were anatomically normal, however, the court recognized that one could be unable to consummate with a specific partner. The uncontested claim led to a decree nisi, nullifying the marriage. [3]

DIVORCE IN ISLAMIC LAW

In Islamic family law, talaq refers to the dissolution of marriage by the husband’s pronouncement of divorce. It can be in lafz sarih (clear words, valid without intention) or lafz kinayah (ambiguous words, valid with intention), and the right of talaq is exclusively given to the husband. [5]

Khulu’ is a wife-initiated divorce where she compensates the husband for his release, completed with his acceptance and pronouncement of talaq. [6]

Fasakh is a court-ordered dissolution of marriage under Section 52 of the IFLA 1984, based on valid grounds like defects or issues with the husband, requiring evidence such as medical proof. [7]

Lastly, Ta’liq refers to a conditional divorce tied to promises made by the husband during solemnization. If he breaches these conditions, such as failing to provide maintenance for over four months or causing harm, the wife may seek a divorce. [8]

In Siti Fatahiyah bt Mahamood v. Mohd Nor bin Mamat [2009], the plaintiff sought to confirm the validity of three talaq pronounced by the defendant outside court. The defendant made one clear pronouncement (lafz sarih) through the plaintiff's mother and two ambiguous ones (lafz kinayah) via SMS. The court held that the clear pronouncement was a valid divorce as it required no intent, while the ambiguous ones were invalid due to the defendant's denial of intent. The court confirmed one talaq rajie, ordered its registration, and annulled the marriage certificate. [9]

CONCLUSION

In conclusion, divorce is a complex and often emotional process, but it serves as a legal pathway for individuals to resolve marital conflicts and move forward with their lives. Moreover,  both parties can achieve closure and begin a new chapter.

REFERENCES

• Associates PSFA, ‘THE VALIDITY of TALAQ via SMS (TA’LIK KINAYAH)’ (Peguam Syarie15 August 2018) <https://peguamsyariefas.com.my/validity-of-talaq-via-sms/>

• ‘Breaking up Is Hard to Do? | Skrine - Advocates & Solicitors’ (Skrine - Advocates & Solicitors2024) <https://www.skrine.com/insights/newsletter/december-2013/breaking-up-is-hard-to-do> accessed 25 December 2024

• Faiz S, ‘DIFFERENCE between KHULU’ and FASAKH - PEGUAM SYARIE’ (Peguam Syarie11 September 2018) <https://peguamsyariefas.com.my/difference-between-khulu-and-fasakh/>

• ——, ‘DIFFERENCE between KHULU’ and FASAKH - PEGUAM SYARIE’ (Peguam Syarie11 September 2018) <https://peguamsyariefas.com.my/difference-between-khulu-and-fasakh/>

• National University, ‘The Dangers of Social Media on Marriage and Family’ (National University1 May 2017) <https://www.nu.edu/blog/the-dangers-of-social-media-on-marriage-and-family/>

• ‘Ta’liq Definition | Law Insider’ (Law Insider2016) <https://www.lawinsider.com/dictionary/taliq> accessed 25 December 2024

• L v L [1956] 1 MLJ 145 (Nullity (Divorce))

• Siti Fatahiyah bt Mahamood v Mohd Nor bin Mamat [2009] 2 SHLR 140 (2008) 10002–054–0352 OF 2008 (Shariah Subordinate Court)