Divorce when the Whereabouts of Spouse is Unknown
This article aims to discuss the procedures to divorce when the whereabouts of the spouse is unknown.
The only way to dissolve a marriage when the whereabouts of the spouse is unknown is to file for a single divorce proceeding.
Section 106 of the Malaysia Law Reform (Marriage and Divorce) Act 1976 (hereinafter referred to as LRA 1976) requires the parties intended to divorce to attend three (3) counseling sessions at the conciliatory body department (marriage tribunal) before filing the single divorce petition to the High Court. However, when the whereabouts of the spouse is unknown the alternative will be to apply to the High Court for an exemption order from attending the aforesaid counselling by relying on the exception clauses stated in Section 106 of the LRA 1976.
Once the exemption order granted, the acting advocates will proceed to prepare and file the necessary cause papers to the High Court.
The next issue to be solved will be on the service of the duly sealed cause papers on the Respondent when the whereabouts of him or her is unknown. The alternative will be to file application to the High Court for an Order to substitute the personal service with the publication of the advertisement in one local newspaper and affixation of the cause papers on the notice board of the High Court and to send the same by way of registered post (for local spouse whose identity card address can be extracted from the JPN).
In order to satisfy the High Court that the efforts have been executed in order to trace the whereabouts of the Respondent when the Respondent is a foreigner, letter of inquiry on the whereabouts of the Respondent (foreigner) shall be sent to the relevant authority such as the Visa Department and Embassy (whichever is based on the foreign spouse’s citizenship).
Once the High Court judge is satisfied that sufficient service has been done on the Respondent, then the acting advocates can proceed to prepare and file for the request for directions for trial. The High Court will fix hearing date and to give directions and fix Trial date. The advocates shall inform the said directions and the Trial date to the Respondent by way of the substituted service as per illustrated above.
The Petitioner and the advocates will attend the Trial. If the Respondent is absent, the High Court will grant Decree Nisi if the High Court has no further questions and satisfied with the all the procedures done by the advocates. A Certificate of Making Decree Nisi Absolute will be extracted by the advocates three (3) months after the grant of the Decree Nisi.
The last step will be to serve a letter to Jabatan Pendaftaran Negara (hereinafter referred to as JPN) requesting the officer to update the marital status to “Divorced”.
Practically, it will take around one (1) or two (2) months for the JPN to update the parties’ marital status to “Divorced” if the request letter is sent by the advocates. Nevertheless, you can always make an appointment with JPN through their online portal and bring the sealed copy of the Certificate of Making Decree Nisi Absolute, CTC copy of the marriage certificate and CTC copy of the identity card to the authorized JPN for them to update your marital status on the spot. A copy of JPN KC 32 will be issued accordingly.
If you have any questions or require any additional information, please contact our lawyer that you usually deal with.