Introduction – Divorce within 2 years
There is a restriction on presenting a divorce petition in Malaysia within 2 years from the date of registration.
So, can you divorce within 2 years? Maybe you can.
Jacob married Janet six months ago. Jacob later had an affair. Janet wanted to seek a divorce.
Jacob was agreeable to the divorce. However, their common lawyer told them that it was not possible to seek divorce within 2 years from their marriage.
Understandably, Jacob and Janet could not understand why.
They thought that they could get a “quickie divorce”, just like Britney Spears did.
Britney Spears and her childhood friend, Jason Alexander, were married for a very short 55 hours.
And then they decided that they’d made a mistake, and got their “quickie divorce”.
But that’s the USA, and this is Malaysia — so, different rules apply.
And, by the way — that Britney Spears “quickie divorce” was actually an annulment. (We’ll cover that in a later post.)
Why this hurdle?
This rule about the 2 years was based on English law, which disallowed divorces within 3 years from marriage.
There is a public policy logic to forbidding divorces within a certain time.
Make divorce too easy, and you’ll witness the breakdown of the family.
And the family is the basic building block of society.
When families are easily broken, society will be in disarray.
Give people some time before they can apply for a divorce, and maybe they’ll patch up their marriage.
That compulsory delay might be better for society.
The general rule on divorce within 2 years
So, let’s get something straight.
There is this prohibition in section 50, Law Reform Act (Marriage and Divorce) Act 1976.
Under this rule, you cannot seek divorce within 2 years from the date of your marriage.
It does not prohibit you entirely from seeking a divorce within 2 years.
There is a general prohibition, but then there are exceptions.
So, for the majority of cases, they’ll need to wait 2 years before they can present their divorce petition.
It doesn’t matter whether it’s a joint petition or a single petition. It still applies.
But then, there are exceptions.
Exceptions to seeking divorce within 2 years
Actually, there’s just *one* exception.
And that exception is that, when the petitioner (the person seeking divorce) is suffering from “exceptional circumstances or hardship”, the court can entertain a petition for divorce within 2 years.
What’s “exceptional circumstances or hardship”? We discuss that later in this article. (See below)
At the same time, in considering the “exceptional circumstances or hardship”, the court will also consider:
- The interests of any child born into the marriage; and
- The chance that the parties can reconcile.
Exceptional circumstances or hardship
There is an old English case called Bowman v Bowman [1949] 2 All ER 127. This case defined what was “exceptional circumstances or hardship”.
A married lady sought divorce before 3 years had passed.
Her husband, she declared, had inflicted upon her extreme depravity and hardship.
Also, her main witness to these facts was leaving the UK — thus increasing the need to have an immediate hearing.
The lady claimed that her husband had committed adultery, was cruel, and had perverted lust.
And so she applied to court, and was granted an exception to the 3 year rule.
Another case, V v V [1966] 3 All ER 493 went as follows.
A lady was beaten by her husband on the head with a bottle. So hard was the hit, the bottle broke.
The lady left the home, but was persuaded to return home. (Bad move.)
After she got home, she learned that — in her absence — her husband had had adultery on the living room couch.
She was upset, and moved to another room in the house.
Shortly after that, she discovered that she was pregnant with her husband’s child.
Instead of celebrating like he should, her husband beat her badly, inflicting bruises on her.
And so she applied to court, and was also granted an exception to the 3 year rule.
In a Malaysian case, Kiranjit Kaur a/p Kalwant Singh v Chandok Narinderpal Singh [2010] 3 CLJ 724, the court agreed that there were exceptional circumstances.
Kiranjit’s husband had been blogging about his wife being a prostitute and a swindler.
Understandably, Kiranjit was upset, and wanted a divorce.
The court held that, “exceptional circumstances” could include: physical abuse, mental abuse, cruelty, and also, slanderous statements published online.
And so, the applicant there was also granted an exception to the 2 year rule.
So, long story short, we might be able to assist you in presenting your case of “exceptional circumstances.”
Disclaimer
We have produced this article to provide general information for visitors of this website.
Your case might be different, and you should consult with a lawyer before making decision.
Feel free to contact us if you have any comments or queries pertaining to this article.