Question:
I’m in a foreign marriage. I got married overseas. Can I get a divorce in Malaysia? Can a court in Malaysia give a divorce order if my marriage was contracted in a foreign country under foreign laws?
Answer:
This is a question about the foreign marriage. You are in a foreign marriage if your marriage was contracted abroad. Here are some possible scenarios:
- You and your spouse are both Malaysian, but registered your marriage overseas. After the registration of your foreign marriage, you did not re-register your marriage in Malaysia.
- You are a foreigner, or your spouse is. You got married overseas, and registered your marriage there. You did not re-register your marriage in Malaysia.
And now, you’re wondering if you can get a divorce in Malaysia for your foreign marriage. Maybe you have a mail-order bride who ran away.
The answer? It depends.
There’s a simple explanation, and a technical explanation.
Simple explanation – divorce in Malaysia for foreign marriage
If you and your spouse have been residing in Malaysia for quite a while, you can probably apply for a divorce. Doesn’t matter if it’s a foreign marriage.
If you are a woman residing in Malaysia, or a Malaysian woman, and your husband has abandoned you, you can apply for a divorce. Again, doesn’t matter if it’s a foreign marriage.
If you and your spouse are Malaysians, but never registered your foreign marriage in Malaysia — you can do that before moving ahead with the Malaysian divorce.
There are probably a number of other situations, which we cannot cover in this article. We advise you to speak to a qualified lawyer.
Technical explanation – divorce in Malaysia for foreign marriage
The Court’s powers to make an order for divorce is written in sections 48(1) and 49(1) of the Law Reform (Marriage and Divorce) Act 1976.
Under section 48(1)(a) read with 48(1)(c), the Court cannot make an order of divorce unless the marriage is deemed as registered under the Act, and the domicile of both parties is in Malaysia.
Under section 48(1)(b) read with 48(1)(c), the Court cannot make an order of divorce unless the marriage was solemnized under a law that provided (or had similar effect) that the marriage was monogamous, and domicile of both parties is in Malaysia.
Under section 49(1)(a), a woman, whose husband is not domiciled or staying in Malaysia, can seek divorce, provided:
- her husband was domiciled in Malaysia but abandoned her, or
- her husband was deported from Malaysia.
Under section 49(1)(b), a woman whose husband is not domiciled or staying in Malaysia, can seek divorce provided:
- she is staying in Malaysia, and
- she had stayed in Malaysia for two years prior to filing for divorce.
The wife must qualify under section 48(1) of the Act before she is allowed to rely on section 49(1).
Family law is a major part of our legal practice.