DIVORCE cases in Malaysia are indeed not something uncommon and yet such incidences cannot just simply be ignored.
This is because throughout the post COVID-19 pandemic, there has been quite a spike of divorce cases in the country, with 62,890 cases recorded in 2022.
As the matter of fact, much like other states in Malaysia, Sarawak is not an exception when it comes to divorce cases.
Based on statistics of divorce cases in the state, it is a very worrying trend.
In 2021, the number of divorce cases in Sarawak has exceeded more than 5,000 cases, with the number of Muslim divorces recorded at that time at 3,582 cases while 2,076 cases involved non-Muslim couples.
Lawyer Peter Mijim has been handling divorce cases ever since his admission to the Sarawak Bar in the 1990s and has represented various clients seeking dissolutions of their marriages through petitions for divorce filed in court.
In an exclusive interview with the New Sarawak Tribune, Peter shared his further insight on handling divorce cases, the legal proceeding of divorce cases in Sarawak, possible factors leading up to divorces, and others.
NEW SARAWAK TRIBUNE: Can you explain the legal grounds for filing for divorce in Sarawak?
Mijim: In terms of the legal ground of divorce in Sarawak, it is legally recognised by law for dissolution of validity on registered marriage by non-Muslim couples, which are provided under the Law Reform (Marriage and Divorce) Act, 1976 (LRA).
The general rule under the divorce law in Malaysia is that no petition for divorce shall be presented to or filed in Court within a period of two years from the date of marriage (i.e the minimum two years restriction period), meaning parties seeking to dissolve their marriage cannot file a divorce petition in Court unless two years has already lapsed since their marriage.
However, exception to this general rule, where the Court has the discretion to allow divorce petition to be presented in Court even though the minimum two years restriction period was not fulfilled, if the Court is satisfied there is exceptional circumstances or hardship suffered by the petitioner during the period, and the Court may allow such premature presentation of petition upon conditions as the Court may see fit to impose.
General rule is, before parties can file the divorce petition, they must have been married for two years or more from the date of their marriage. However, there is an exception [Section 50(2) of LRA] where the Court may exercise its discretion to allow and give permission for filing of divorce petition even though those two years minimum marriage period has not expired on grounds of exceptional circumstances and hardship on the petitioner.
How long do the divorce proceedings usually take place?
It depends on the scenario of the divorce case itself. It may take months if there are some things in the proceedings that are being dragged on. And it also depends on the schedule of the Court hearing. Because we must understand the Court does not handle divorce cases only, there are many other cases that the Court is handling.
However, if everything goes well, and the issue is not as complicated as it seems, the divorce may take a month or two to complete. The lawyers would submit their plea based on what their client want and favour. But the overall decision is at the hands of the Court itself. Based on what it sees fit towards the client as well.
In your years of experience, is there any divorce cases where the petitioners somehow decided to change their minds?
There is actually a few cases where the petitioners changed their minds. Sometimes, whenever they come and see you, they come in emotionally charged, and they could not think straight.
There are times where we take the briefing from them, we felt that the decision that the petitioners made may not be what they want. We do not really grant the divorce immediately. We sometimes would have a sit-down with them and would ask them to reconsider their decision to divorce.
We even ask them to talk to their friends, loved ones or any supporting groups to get their opinion on whether it is the right thing for them or not. If they manage to change their minds and not getting divorce, then the divorce proceedings are halted and we wish them all the best in everything. However, if the petitioners want to change their minds again then our doors are always open for them to go ahead with the divorce.
What are the specific cultural or religious considerations that may impact divorce proceedings in Sarawak?
If, in terms of the effectiveness of cultural practices and its adherence or religious beliefs and teachings, embraced and professed by married couples to curtail any propensity of divorce among those who may be facing marital difficulties/conflicts at some point in time of their marriage, I am not sure if there are any specific considerations in this regard that may have any profound impact on divorce proceedings because, as you know, navigating a divorce, by any stretch of imagination, is rather a complex process, no matter the circumstances.
I would suppose that adding religion or even cultural influences and mixing them with the existing complexities of unsettled issues engulfing divorce intent spouses at the verge of breaking up their marriage can prove to be more challenging and daunting situation.
In my personal view, often, couples who sought to end their marriage would have already been very adamant and made up their minds to seek a divorce, only then they would come and consult, and in many cases, instruct their lawyers to proceed accordingly.
Is there any situation where a divorce is necessary?
Well, if the spouse involved in an abusive marriage for example, or one of them somehow contracted dangerous diseases, and you feel that you cannot live with them anymore, then I believe it is best to end the marriage for the sake of health and security concerns.
When it comes to the custody of the children, how would they decide who the children will reside with?
It depends on the children themselves which parent they decide is best for them to live with. But normally for children below seven years old according to the law, it is best for them to live with their mum. And the father would be granted reasonable access to the children.
But there can be grounds for rebuttal. For reasons if that mum is incompetent to take care of the children, then the children would go to the father. Besides, at the end of the day, we would like to see the wish of the children concerning which they would prefer to live with, their mother or their father.
In the event of divorce due to adultery, can we hold the third party responsible for the divorce/breakdown of the marriage?
Yes, if you provide the evidence that there is a third party responsible for the breakdown of the marriage, to which that person came in and cause destruction to that marriage, that you indeed can held them accountable. Furthermore, you can sue the third party for any sort of damages caused by them as well.
In my experience, although that never happen while I am handling divorce cases, I am sure that it does happen. After all, if the petitioners can do it, they would hire private investigators to get more concrete proof that the third party is indeed involved in the breakdown of the marriages.
What are some of the steps that can be taken if the person found themselves in such situations?
So, if any individual (meaning married couples, Muslim or non- Muslims alike) do find themselves caught in this situation (which I take to mean, at the verge of deciding to divorce his/her spouse), my humble advice to those individuals are to seek help for emotional support (i.e. talking over the problem with family members or elders, reputable marriage counsellors, community elders/religious figures within his/her religious community etc.) would or could, to some extent, alleviate the problem or at least shed better guiding light towards achieving this.
