A Comparison of the proceedings of Divorce between Malaysia and Singapore

When comparing provisions and principles in regards to divorce proceedings in

Malaysia and Singapore, one must review the purpose of said proceedings in relation to the
rights of the parties. These proceedings are safeguards and sureties to ensure that the parties
have valid grounds to dissolve the marriage as well as to protect the rights of the spouses and
children in the in terms of abuse or negligence. Issues on whether these provisions protect the
rights of the parties in terms of division of matrimonial properties and maintenance orders
equally; as well as truly consider the welfare of the child of the marriage and his or her rights
if a decree of divorce is granted by the courts, must be thoroughly reviewed and altered.
The first aspect that shall be evaluated is the specified period stipulated before a
decree or writ of divorce can be made and the reconciliation between the parties of the
marriage. In Malaysia, the law governing divorce proceedings is dictated by the Law Reform
Act (Marriage and Divorce) 1976 [LRA] and shall only be applicable to parties whose
marriage has been registered or deemed to be registered, marriages that are monogamous in
nature, and where both parties are domiciled in Malaysia; as claimed under section 48 of this
auspicious act.1 Section 50 (1) of the LRA proclaims that any petition for divorce shall not be
presented in court before the expiration of the specified period of 2 years. Be as that may,
section 50 (2) provides an exception to the general rule above and allows for petitions to be
presented on the grounds that the petitioner has suffered exceptional circumstances or
hardships, however a Judge shall have regard for the children of the marriage and consider
whether there is reasonable belief that reconciliation may occur between the parties during
the specified time.2
The laws on specified period and reconciliation in Singapore when compared to
Malaysia, prima facie, is similar. The Women’s Charter 1961 is the prevailing statutory law
that dictates all proceedings in regards to marriages and divorce in Singapore. Section 94 (1)
of the Women’s Charter proclaims that there is also a specified period of three years before
filing a writ of divorce however this is subject to Clause 2 of said section if the petitioner can
prove exceptional hardship has been suffered by her or exceptional depravity has been
suffered by the defendant.3 Although, Malaysia allows for the plaintiff to petition before the
expiration of the specified period on the ground of exceptional hardships suffered, Singapore

1
Law Reform Act 1976
2
Ibid
3
Women’s Charter 1961

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on the other hand, not only allows the above but also allows the defendant to petition before
the specified time in the case of exceptional depravity suffered.
In the unreported case of Wong Pee Wei v Anna Laurene Ho Soo Hua4 the parties
were married in April 2001 and had a daughter from the marriage in October 2001. The
husband had sought to petition for a writ of divorce in the following year in 2002, before the
three years have passed since the date of the marriage.5 He filed for divorce on the grounds of
exceptional hardships and depravity however, the court in considering the elements of
exceptional hardship and depravity they had to take into consider the decision from the
common law case of Winter v Winter6 and held that there was no proof of exceptional
hardship or depravity. Despite the fact that the court did not allow for the petition to be
presented in court, an important fact should be understood from the case above. The
provision in section 94 (2) of the Women’s Charter bestows the right to petition before the
specified period to both parties equally. It allows for the defendant and the plaintiff to both
individually petition on the ground of exceptional hardship and exceptional depravity
suffered.
In terms of reconciliation between the parties, the laws between Malaysia and
Singapore are evidently similar as both legal systems hold much value over the matrimonial
institution. Under section 94 (4) of the Women’s Charter states that any differences between
the parties shall be referred to a Conciliation Officer before determining the future of any
application for divorce under this particular section. This limb is similar to section 50 (2)
stating that the Judge shall consider is there is reasonable belief that the parties can reconcile
and their matrimonial woes are referred to a Conciliation body. Further, in Singapore the
specified period is three years since the date of the marriage while Malaysia remains at two
years. While it may not seem to provide much of a difference, the three years specified in
Singapore entitles the parties to work on their marriage for a slightly more elongated time
thus, allowing the law to be more stringent when in regard to petitioning for divorce. This is
an important feature as it allows the law to make greater efforts to keep the parties committed
to the marriage and to keep in mind the interest of the child from the marriage.7 A compelling
point was brought forward by the court in the case of Wong Pee Wei v Anna Laurene Ho Soo

4
O.S. No. 650076, unreported decision of the Subordinate Court dated 13 September 2002.
5
Ibid
6
[1944] p. 72.
7
Ong DSL, “TIME RESTRICTION ON DIVORCE IN SINGAPORE” [2003] Singapore Journal of Legal

Studies 413 <https://www.jstor.org/stable/24869508?read-now=1&seq=1>

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Hua, by stating that there will always be hardships in all marital breakdowns involving
unreasonable behaviour thus, the law expects the partners to work hard to build and maintain
a stable bond in the marriage.8
The next aspect that shall be weighed is the rights of the parties as equals when
petitioning for divorce after the specified time. The parties to a marriage may also file for a
divorce on the grounds stated in section 54 of the LRA which sets outs the many factors that
shall prove the breakdown of marriage. This is reflected under section 95 of the Women’s
Charter in Singapore however section 98 of the Act gives rights to the husband to file for a
writ of relief if he can prove any factor provided under section 95 (3) and puts him in the
position as if he were the plaintiff and his wife the defendant.9
The following aspect that will be compared is the right of the children of the marriage
and the welfare of the children. In the Women’s Charter section 94 A sets out a requirement
that before going through a parenting programme no petition for divorce shall be applicable.
The programme is created to ensure that the parents of the marriage are keeping in mind of
their children’s welfare and interests and it helps parents understand the financial challenges
of a divorce, the impact of a divorce on living arrangements, custody of children, and the
importance of co-parenting10
To conclude, when comparing the provisions and laws governing the proceedings of
divorce in Singapore to Malaysia, it is evident that Singapore’s perspective on the rights of
the parties and children are much more wholesome. In terms of the rights of each spouse,
sections under the Women’s Charter allow for both spouses to be entitled to file for a petition
equally as individuals and on the same grounds. Furthermore, the rights of the children of
marriage are extremely protected and regarded under the law to ensure that their well being
and welfare are looked after and considered. Malaysia should make reforms through the
consideration of these provisions under Singaporean law to enable the parties from losing out
and maintain a more stable institution of marriage. From the graph below, the recent statistics
since 2017 shows that Singapore’s provisions in maintaining the value of the marriage
institution has affected the rate of divorces. Since 2013, there has been a significant dip in the
number of divorce cases thus, proving that their laws and principals are effective.

8
Ibid
9
Women’s Charter 1961
10
“Divorce Support.” Ministry of Social and Family Development, www.msf.gov.sg/Divorce
Support/Pages/Mandatory-Parenting-Programme.aspx.

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From the graph above, the recent statistics since 2017 shows that Singapore’s
provisions in maintaining the value of the marriage institution has affected the rate of
divorces. Since 2013, there has been a significant dip in the number of divorce cases thus,
proving that their laws and principals are effective

11
“Divorce Rates, Annual” (Data.gov.sg) <https://data.gov.sg/dataset/divorce-rates-annual> accessed February
4, 2020