Can I Get a Divorce If My Partner Doesn’t Agree?

Understanding Divorce Options in Malaysia

Divorce is often a difficult decision, especially when one partner does not agree to it. However, it is possible to obtain a divorce even if your partner does not agree, provided that you meet the legal requirements and follow the correct process. 

This article will guide you through the available options if you are in a situation where your partner refuses to consent to a divorce. We will discuss the grounds for divorce, the difference between contested and uncontested divorce, and the steps you need to take to proceed with the process. 

Before a divorce petition can be filed under the Law Reform (Marriage and Divorce) Act 1976, certain preliminary requirements must be fulfilled. According to the law, the marriage must be legally registered in Malaysia. Only marriages that have been formally registered under Malaysian civil law can be dissolved through the civil court system. 

Additionally, the marriage must have subsisted for at least two years. The law requires that non-Muslim couples must be married for a minimum of two years before they are eligible to file for divorce, except in exceptional circumstances where early dissolution may be permitted. 

In Malaysia, the Law Reform (Marriage & Divorce) Act 1976 (LRA) sets out the grounds on which a divorce can be filed. While the most common reason for a divorce is an irretrievable breakdown of the marriage, several specific grounds under the law may justify a divorce, even if the other partner does not consent. 

Irretrievable breakdown of the marriage under Section 53(1) of the LRA is the primary ground for divorce. In Jennifer Chin Nyat Ying v Ambrose Obon [2021] CLJU 966, the court emphasized that when a marriage has clearly broken down, it should be dissolved. Spouses should not be tied together to lead an empty life. 

Similarly, in Saravanan A Narayanasamy v Meenachee Subramaniam [1998] 5 CLJ 729, Justice Low Hop Bing J reaffirmed that it is eminently clear that Section 53(1) of the Law Reform (Marriage and Divorce) Act 1976 has succinctly established that there is only one ground for divorce under the Act, that the marriage has irretrievably broken down. This approach is consistent with other jurisdictions having identical provisions as Section 53(1).

In Cheong Kim Seah v Lim Poh Choo [1993] 1 SLR 172 (Singapore), Karthigesu, J. remarked that a respondent’s wish to preserve the marriage cannot override clear evidence of separation or breakdown. Declaration of affection or emotional support are insufficient to counter the reality that the union becomes nothing more than a legal formality—an empty shell lacking any real matrimonial substance. 在新加坡的 Cheong Kim Seah v Lim Poh Choo [1993] 1 SLR 172 

On the facts of the case before the court, it was remarked that there is no useful purpose served by keeping the marriage on paper only without any reasonable prospect of maintaining the marriage as a meaningful union in practice. It is no more than a facade, an illusory and imaginary bubble of theoretical relationship, devoid of any reality in matrimony. Irretrievable breakdown of the marriage includes various situations as mentioned in Section 54(1) of the LRA such as adultery, cruelty or abuse, desertion, and separation. 

If one spouse has been unfaithful, as shown in HLC v PTL & Anor [2024] 10 MLJ 640, besides proving adultery, it is crucial that the adultery has destructed the sustainability of the marriage, making it intolerable for the petitioner to cohabit with the spouse. 

Physical, emotional, or verbal abuse that leads to one spouse being unable to reasonably continue cohabitation constitutes cruelty or abuse. Desertion occurs if one partner has deserted the other for a continuous period of at least two years. Separation applies if spouses have been living apart continuously for at least two years. These grounds allow a party to file for unilateral divorce, even if the other spouse is unwilling to participate or consents to the divorce. 

A divorce in Malaysia can be categorized as either contested or uncontested.。 Uncontested divorce occurs when both spouses agree to the divorce and the terms of the separation, such as child custody and asset division. It is generally quicker and less costly as the process is straightforward, usually taking about six months. Contested divorce occurs if your partner refuses to consent to the divorce. In such cases, the judge will review the case to determine whether the marriage has irretrievably broken down and whether the divorce should be granted. 

If your partner refuses to agree to the divorce, you can still proceed under Malaysian law. You must file a unilateral divorce petition at the court. For non-Muslim couples, this will be the High Court, while Muslim couples must approach the Syariah Court. The petition should state the grounds on which you are seeking the divorce, on grounds such as adultery, cruelty, desertion, or separation. 

If your partner disagrees with the divorce, you will need to prove to the court that the marriage has irretrievably broken down. Evidence of the grounds as abovementioned has to support this claim.持证据。 The court will review all evidence provided, and if it finds that the marriage has indeed broken down irretrievably, it will grant the divorce. 

The spouses must refer the marriage to the marriage tribunal, the National Registration Department, Jabatan Pendaftaran Negara (JPN), for conciliation, as required under Section 106 of the LRA. This process requires the parties to attend several reconciliation sessions organized by the National Registration Department, aimed at resolving marital issues. These sessions typically span 3 to 4 months and must be completed within a maximum of 6 months, and the spouses are expected to attend personally. 

The High Court in LIM SZE MEY v LOOI GUAN HEON [2021] 8 CLJ held that no petition for divorce shall be presented unless the marital difficulty is first referred to a conciliatory body, and the statutory certificate in the form of JPN.KC29 must first be secured, or a dispensation obtained from the court before presenting the divorce petition. 

However, the reconciliation requirement does not apply if the petitioner alleges that they have been deserted and do not know the whereabouts of their spouse, if the respondent resides abroad and is unlikely to enter the jurisdiction within six months, if the respondent has wilfully failed to attend the conciliatory sessions, if the respondent is imprisoned for five years or more, if the respondent suffers from incurable mental illness, or if the court is satisfied that exceptional circumstances make referral impracticable. 

Even if either spouse refuses to attend conciliation sessions, JPN can still issue a certificate of non-conciliation. This certificate is required when the spouse initiates the single petition process later. 

In the case of Esther Doraisamy v Vijayan Gopal [2022] 6 CLJ, the petitioner attempted to rely on a certificate of non-conciliation issued in 2002 to support her divorce petition in 2022, arguing that the certificate remained valid due to a liberty clause included in the earlier proceedings. However, the court ruled that the liberty clause only allowed a second divorce petition to be filed if reconciliation efforts at that time had failed. It did not permit reliance on the same certificate after the couple had reconciled and lived together for ten years following the withdrawal of the first petition. 

Section 106(1) of the Law Reform (Marriage and Divorce) Act 1976 clearly states that no divorce petition can be filed unless a fresh certificate of non-conciliation is obtained, except in limited circumstances. The court found the 2002 certificate no longer valid, and because the petitioner failed to obtain a fresh certificate, the divorce petition was dismissed.

While divorce may be a challenging and emotional process, it is possible to proceed with a divorce even if one spouse does not agree. If you are in a situation where your partner refuses to consent to the divorce, you still have legal options available. By filing a divorce petition and providing sufficient evidence to prove that the marriage has irretrievably broken down, you can proceed with your divorce. 

If you’re considering divorce, it’s essential to consult with a qualified family lawyer who can guide you through the process and ensure your rights are protected. Divorce is not the end of the road—it can be the first step towards a new chapter in life.