Question:
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“Hi Lawyer Yeo, my Vietnamese wife went back to her home country 5 years ago, and we haven’t been in touch since her leaving. Hence, I am planning to apply for a unilateral divorce to dissolve our marriage.
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As far as I understand, before initiating the divorce proceedings, I need to attend 3 counseling sessions at JPN (National Registration Department) Malaysia with my wife. However, I can’t apply the counseling as I don’t have her contact number, and I don’t know her current whereabouts in Vietnam.
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Could you advise me if there’s a way I can skip the counseling sessions? Also, I’m worried that not having her address might affect the divorce application later on. Could you provide some guidance as to how to solve this problem? Thank you.”
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Answer:
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1. According to Section 106 of the Law Reform (Marriage and Divorce) Act 1976, before initiating unilateral divorce proceedings, it is mandatory for the applicant first referred the matrimonial difficulty to a conciliatory body.
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2. In the event the conciliatory body is still not able to resolve the matrimonial issues between the parties, only then the applicant can proceed to file a unilateral divorce petition in the High Court with the certificate (of not able to reconcile) issued by that conciliatory body.
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3. Under section 106 of the Act, there are 6 exceptional circumstances where the applicant can apply for a court order to exempt from the counseling process. These circumstances are:-
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- Where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse;
- Where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition;
- Where the respondent has been required to appear before a conciliatory body and has wilfully failed to attend;
- Where the respondent is imprisoned for a term of five years or more;
- Where the petitioner alleges that the respondent is suffering from incurable mental illness; or
- Where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable.
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4. Therefore, in the above case, the Applicant can appoint a lawyer to apply a court order under s.106 of the Act, to exempt from the counselling process.
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5. In addition, the Applicant must apply another order to exempt the service of divorce papers to his/her spouse. If not, the whole divorce process cannot proceed further as the laws required another party of the legal process must have knowledge of the ongoing divorce proceedings.
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6. Under Rule 12(10) of the Divorce and Matrimonial Proceedings 1980, the court has the power to exempt the applicant from serving divorce documents to the other party.
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6. This has been decided in the case of HONG KIM FOO v. YEH YI-LING (2018) 8 MLJ 152 where the High Court has allowed the application on the ground that the wife respondent had returned back to her own country, Taiwan. The Court viewed that it is impracticable to expect the husband applicant to look for his wife in a country of 20 million population (at that time).
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7. Hence, in a situation where the other party has left Malaysia or can no longer be found, the applicant can still apply for a unilateral divorce with 2 exemption orders.
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The above are the laws governing unilateral divorce proceedings in Malaysia that we would want to share with you today. Should you have further inquiries for this matter, please do contact us: https://wa.link/q3kmv5
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