Can I get a divorce if my spouse does not agree?
Quick Summary
Yes, you can get a divorce in Malaysia even if your spouse does not agree.
Two types of divorce in Malaysia:
1. Joint Petition - Both agree to divorce and all terms.
2. Single Petition - One party files without the other's agreement.
No consent needed for single petition, but must:
1. Attend marriage counselling at National Registration Department (Jabatan Pendaftaran Negara (JPN)); and
2. Prove breakdown of marriage (e.g. adultery, unreasonable behaviour, desertion, or long-term separation).
Still living together? You can still file if the marriage is no longer workable.
Spouse refuses to attend court? The case can still proceed if documents are served properly and legal grounds are established.
Timeline: Varies by complexity. In straightforward cases, it usually takes at least six months (plus another six months for counselling).
One of the most common questions people ask when considering a divorce is: “Can I still get divorced if my spouse does not agree?” This concern often arises when only one spouse wants to end the marriage, while the other insists on staying together or refuses to participate in the process.
In this article, we break down what happens in such situations under Malaysian law and what options are available to you.
Understanding divorce in Malaysia
In Malaysia, for non-Muslim couples, divorce is governed by the Law Reform (Marriage and Divorce) Act 1976. There are two main types of divorce:
Joint Petition - Both spouses agree to divorce and agree on all the terms
Single Petition - One spouse wants the divorce, or both agree to divorce but can’t agree on the terms
The key differences between the two will be explained in a separate article below. For now, what matters is that a single petition allows you to move forward even if your spouse does not agree to the divorce.
Types of Divorce for Non-Muslims in Malaysia: Joint and Single Petition Explained
Do I need my spouse's consent to file for divorce?
No. Consent is not required if you are filing a single petition. However, you must show to the court that the marriage has irretrievably broken down. This can be done by proving one or more of the following:
Your spouse had a sexual affair and you feel that you can no longer live with them anymore
Your spouse treats you in a way that makes it unfair or too hard for you to keep living together. This could include being controlling, violent, emotionally hurtful, or even neglectful
Your spouse left you and has not come back for at least two years before you filed for divorce
You and your spouse have not lived together for at least two years before filing for divorce
What if we are still living together?
You can still file for divorce even if you and your spouse are living under the same roof. The court understands that some couples may continue living together due to financial reasons, family needs, or other practical constraints, and will consider your situation before making a decision.
Do I need to attend counselling first?
Yes. For single petitions, the court requires both parties to attend marriage counselling at the National Registration Department (Jabatan Pendaftaran Negara (JPN)) before you can file it. This step usually takes about six months to complete.
The requirement may be waived in urgent or exceptional situations, such as cases involving violence or abuse. Whether an exemption applies depends on your specific circumstances.
What if my spouse refuses to attend court?
If your spouse refuses to attend court, the case can still move forward provided that:
The divorce documents were delivered properly to your spouse in accordance with court rules (this is known as "service of documents")
The deadline for your spouse to attend or respond has passed
You have fulfilled one or more of the legal grounds mentioned above e.g. adultery, unreasonable behaviour, desertion, or long-term separation
You have supporting evidence that the marriage has broken down
In that case, the court can proceed to hear the matter without your spouse present.
How long does a single petition take?
Timelines can vary depending on the complexity of the case, whether there are children or property issues involved, how cooperative the other spouse is, the court’s schedule, and the specific circumstances involved.
In a straightforward case, where the documents can be served without difficulty and the other spouse does not contest the divorce, it usually takes at least six months to complete. This estimate does not include the time needed for marriage counselling, which usually takes an additional six months.
The process may take longer if:
There are difficulties locating or serving the other spouse
The other spouse chooses to contest the divorce or raise objections
Final thoughts
While it’s ideal when both spouses agree to part ways amicably, the law recognises that this is not always possible. If you are in a situation where your spouse refuses to agree to a divorce, you still have options to move forward.
If you are unsure about your next steps, consider seeking legal advice early on. Having a clearer picture of your rights and options can help you make informed decisions.
If you are looking for an experienced family and divorce lawyer in Kuala Lumpur (KL) & Selangor, reach out to Sandra via WhatsApp for a consultation to discuss and explore your legal options in Malaysia.
