5 Common Divorce Myths in Malaysia Debunked

Myth 1: The mother always gets custody

The court decides custody based on the child’s welfare, under Section 88 of the Law Reform (Marriage and Divorce) Act 1976.

Section 88(3) presumes it is good for a child under seven to be with the mother. But this presumption can be rebutted (overturned by evidence). It is not an absolute rule.

Fathers can and do get custody. The court looks at who has been the main carer, how stable each home is, the child’s wishes if they are old enough, and each parent’s ability to meet the child’s needs.

For children aged seven and above, the presumption does not apply. The court looks only at the child’s welfare.

Myth 2: You must prove your spouse did something wrong

Not always. If you both agree to divorce, a joint petition under Section 52 needs no proof of fault.

If you file alone (a single petition under Section 53), you must show the marriage has broken down, using one of the facts in Section 54. One of them is having lived apart for at least two continuous years, under Section 54(1)(d). Your spouse does not need to consent, and no one is blamed.

Fault-based facts, such as adultery (Section 54(1)(a)) and unreasonable behaviour (Section 54(1)(b)), are options, not requirements. See our guide to the grounds for divorce.

Myth 3: Divorce always takes years

How long it takes depends mainly on whether you agree.

A joint petition, where you have settled all the terms, is usually much faster. A contested divorce takes longer because of extra applications, disputes over documents and the court’s schedule. Settling during the case can shorten it.

Every divorce starts with a decree nisi (a provisional decree). Under Section 61, it cannot usually be made absolute (final) until three months have passed.

Myth 4: You will lose everything

The law does not support this fear. Under Section 76, the court divides matrimonial assets. For assets acquired during the marriage, the court leans towards an equal split, but it is not automatic.

The court counts both money earned and work at home, such as caring for the family. It also considers each side’s contributions and the needs of any children.

Property owned before the marriage, or received as a gift or inheritance, may be treated differently. Your lawyer can tell you which of your assets are likely to count as matrimonial property.

Myth 5: At 12, a child can choose which parent to live with

There is no such age rule. Under Section 88(2)(b), the court considers the child’s wishes where the child is old enough to give an independent opinion.

An older, more mature child’s view carries more weight, but it is never binding. The child’s welfare comes first, and the court may decide differently if the other parent can better provide stability, schooling and emotional support.

Why these myths last

Most come from friends, family or social media rather than the law. Some reflect traditional roles, like the idea that mothers always get custody.

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