The Jurisdictional Matters in a Divorce
In Malaysia, jurisdiction is conferred upon the Civil High Courts to make decisions for non-Muslim family law matters. Article 121(1A) of the Malaysian Federal Constitution bars secular courts from asserting jurisdiction in any matter that fall within the ambit of the Syariah courts. Therefore, separate Syariah courts attain exclusive jurisdiction over family law matters concerning Muslims.
One of the preliminary requirements to make a divorce application in Malaysia pursuant to the Law Reform (Marriage and Divorce) Act 1976 of Malaysia is that the parties to the divorce are domiciled in Malaysia at the time the petition for divorce is presented.
The fact that one of the parties is not a foreigner will not be a matter of destruction, provided that both parties are domiciled in Malaysia at the time the divorce is initiated.
An exception to the requirement for both parties to be domiciled is conferred upon wives pursuant to Section 49 of the Law Reform (Marriage and Divorce) Act 1976 which states that Malaysian courts have jurisdiction to grant a divorce in favour of a wife (but not a husband) should any of the following circumstances apply:
- Where the wife has been deserted by the husband, subject to the requirement that the husband was domiciled in Malaysia before his desertion; or
- Where the husband had been deported from Malaysia, subject to the requirement that the husband was domiciled in Malaysia prior to his deportation; or
- Where the wife is a resident in Malaysia and had been ordinarily residing in Malaysia for two years, immediately preceding the commencement of the proceedings.
Recognition of Marriages Contracted Abroad
Section 104 of the Law Reform (Marriage and Divorce) Act 1976 reads as follows:
A marriage contracted outside Malaysia other than a marriage solemnized in a Malaysian Embassy, High Commission or Consulate under section 26, shall be recognised as valid for all purposes of the law of Malaysia if—
(a) it was contracted in a form required or permitted by the law of the country where it was contracted;
(b) each of the parties had, at the time of the marriage, capacity to marry under the law of the country of his or her domicile; and
(c) where either of the parties is a citizen of or is domiciled in Malaysia, both parties had capacity to marry according to this Act.
With reference to the above, the general connotation is that all marriages solemnised in foreign lands are accepted by the Malaysian government unless the marriage is either invalid, or against the Law Reform (Marriage and Divorce) Act 1976. Albeit not having been contracted in a Malaysian Embassy, High Commission or Consulate, the Malaysian law provides recognition for all marriages that have been solemnised abroad.
A marriage under section 104 is a marriage contracted by a Malaysian citizen or a person domiciled in Malaysia but currently resides in the vicinity of another jurisdiction.
Whether or not a marriage that has been solemnised abroad is rendered as being valid, is subject to the conditions laid down under paragraphs (a) to (c) above.
Recognition of Marriages Contracted In Embassies and Other Relevant Bodies, In Malaysia
As enunciated under Section 105 of the Law Reform (Marriage and Divorce) Act 1976, a marriage that has been contracted in a foreign Embassy, High Commission or Consulate in Malaysia shall be rendered valid under the Malaysian law, provided that the following requirements apply:
(a) The marriage was contracted in a form required or accepted by the law of the country whose Embassy, High Commission or Consulate it is, or in a form stipulated within the Law Reform (Marriage and Divorce) Act 1976;
(b) Each of the parties had, at the time of the marriage, capacity to marry under the law of the country of his or her domicile; and
(c) Where either of the parties are a citizen of or is domicile in Malaysia, both parties acquired the capacity to get married under the Law Reform (Marriage and Divorce) Act 1976.
