Introduction – The Foreign Divorce
Recently, our firm had the privilege of assisting our clients, who were divorced in a foreign court.
The ex-husband is a foreign national, while the ex-wife is a Malaysian.
In the case of a foreign divorce, i.e. a divorce obtained in a court outside Malaysia, how should the parties go about getting the divorce recognised in Malaysia?
The technical point is that, the marriage has already been dissolved through a foreign court’s divorce order, so, it is not logical to seek another divorce order in Malaysia.
This was something new to us, and while we relished the opportunity to try something new, we needed to figure out how to go about it.
The answer, which became obvious to us, was to obtain a declaration in the Malaysian courts, under section 107 of the Law Reform (Marriage and Divorce) Act 1976.
Seeking a Declaration, part 1
The declaration is a type of order given by the local court i.e. the Malaysian court.
Section 107(3) of the LRA 1976 states, “Where a marriage which is solemnized in Malaysia is dissolved or annulled by a decree of a court of competent jurisdiction outside Malaysia, either of the parties may apply to the Registrar General for the registration of such decree and the Registrar General, on being satisfied that the decree is one which should be recognised as valid for the purposes of the law of Malaysia, shall register that decree.”
What it means is, if a marriage was solemnized in Malaysia, and is dissolved abroad, that foreign divorce order can be recognised in our Malaysian courts.
At first, we planned to file a joint petition presented by both parties, seeking a declaration for the Malaysian court to recognise the foreign divorce order.
So we drafted it up and asked the foreign client (the ex-husband) to get his papers signed. His ex-wife could get her portion signed in Malaysia.
However, our foreign client (the ex-husband) was informed by someone at the Malaysian Embassy that both parties needed to sign the papers at the same time.
Strangely, our client was also informed that the Malaysian lawyers needed to sign the papers as well.
Puzzled, he checked back with us, and we told him that the employee at the embassy must have been mistaken.
It became clear that we needed to try a different method to achieve the client’s goals.
Seeking a Declaration, part 2
We redrafted the petition, making it a single petition, presented by the Malaysian ex-wife.
The ex-wife would sign a petition all by herself, seeking the declaratory orders.
Just to be safe, we asked the foreign ex-husband to stand by, in case he needed to file an affidavit to state that he did not object to the proceedings.
We sought three orders in the cause papers.
First, that the foreign divorce order be recognised as valid by the Malaysian court.
Second, that the National Registration Department be directed to register the foreign divorce, and change the status of our clients to “Divorced”.
Third, that there would be an additional order, that the child of the marriage needed to go back to her father’s house if she ever comes to visit her mother. (Even though it was already addressed in the foreign divorce order, we thought of making things clearer.)
On the appointed date, the matter was heard by the family court.
The family court judge allowed the first and second orders, but not the third.
Her reasoning was that, we had sought a declaration, and the declaration could only recognise the foreign divorce, but not add to it.
Fortunately, our clients were happy with the outcome.
The most important point was that the foreign divorce order was recognised in Malaysia.
We also learned that it would be sufficient for the Malaysian party to file a single petition.
What if the Marriage Was Not Registered in Malaysia
The Malaysian court could give an order because the marriage had been registered here in Malaysia.
The wording of section 107(3) of the Law Reform Act (Mariage and Divorce) Act 1976 starts with, “Where a marriage which is solemnized in Malaysia…”
What if the marriage had not been registered in Malaysia? Then it may not have been necessary for the ex-wife to obtain a declaratory court order to recognise the foreign divorce.
But what if the Malaysian party still wanted the Malaysian court to recognise the foreign divorce order, despite never having registered the marriage in Malaysia?
Perhaps a solution (which is untested, at least for us) would be for the foreign marriage to be registered in the Malaysian registry. And after it is registered, then the parties could seek a declaration to recognise the foreign divorce.
A citizen of Malaysia or someone domiciled in Malaysia could register a foreign marriage, under section 31 of the Law Reform (Marriage and Divorce) Act 1976.
But then certain technical points arise.
First point. Is it a new marriage?
The answer is that no, it is not a new marriage, but a registration of an existing marriage, which has already taken place. The registration in Malaysia is a recognition of what has already transpired abroad.
Second point. Can a foreign marriage be registered if it has already been dissolved abroad?
Technically speaking, the marriage has already been dissolved. But this should not block the parties from registering it.
It is no different than saying to the JPN (Jabatan Pendaftaran Negara, or National Registration Department) that while abroad, you gave birth, and that child subsequently died.
If a child was born to a Malaysian citizen, in a foreign country, and died, also in a foreign country, is there any reason to say that the child’s birth and death should not be registered in Malaysia?
That would be tantamount to saying that the child’s birth and death could not be registered, if the child died before his birth was registered.
If you agree with the logic of this argument, then the same argument holds for the registration of a foreign marriage, even if the foreign marriage has already been dissolved in a foreign court.
Of course, we have yet to try it out. Perhaps we will update this article at a later date if we find the answer.
THANKS FOR READING.
Disclaimer
This article was prepared to provide general information to members of the public. It is not intended to serve as legal advice.
Please consult with a licensed lawyer before making any decision based on the content of this article.