How it all works
Understand the basics of separation, how you can use our website and what support services may be suitable for your situation with your partner.
What is My Separate Path?
My Separate Path is your comprehensive guide to understanding separation and divorce in Malaysia.
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Our aim is to provide you simple, understandable advice to manage yourself and your relationships throughout your journey.
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We want you to feel supported with a sense of courage as you take your first few steps.
How do I use My Separate Path?
You can use our website as a resource to understand the various options for your potential separation. You can also download our Questionnaire, fill it out and use it as a basis to send to the support services that you may need.
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It helps you by not needing to repeat your situation again and again, and makes their job easier by having a concise document that outlines your circumstances.
I am not sure if I want to separate from my partner
We recommend that you engage a counsellor or coach to discuss your thoughts and feelings about your partner. You can choose to do this separately or together with your partner.
I have decided to separate. What are my options?
As a Muslim, the various pathways are dependent on if you are male or female, as well as whether it is a mutual or non-mutual separation.
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If you are male:
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1. Talaq
This is a separation pathway that only a husband can initiate. So if you and your partner mutually agree to separate and have drafted a separation agreement, this is the simplest option.
Mutual talaq is also the fastest and cheapest approach to move towards the next steps in life; just be aware that the process may differ slightly from state to state. Timeline can range from 6 months to 1 year.
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Talaq is very flexible, as it can also be used in a non-mutual separation. Again, this can only be initiated by the husband. A non-mutual talaq may be where you and your partner have not agreed on a separation agreement and want the court to decide on your behalf.
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2. Li'an
Li'an is a very specific pathway that only husbands can use. The separation process involves swearing in front of the court that adultery has taken place in the marriage, specifically for instances where there are limited witness to attest this.
The wife is also able to swear in front of the court, thereby countering any accusations.
If either party does not swear in front of the court, then they may be subject to a fine and punishment for false accusations.
In general because of the complexity surrounding li'an, it is a rarely used method for separation. The exact process is different from state to state.
If you are female, you have the following options.
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1. Ta'liq
Ta'liq is a separation path that is only applicable for woman. The grounds are based on the ta'liq agreed at the time of marriage between husband and wife. Normally this relates to maintenance not being paid, your husband leaving you or causing you physical harm.
Be aware that grounds for ta'liq is once again governed at the state level. For more specific cases, you will need to find legal advice.
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2. Khul'
This is a separation pathway that only a wife can initiate, where they must pay a token amount to their husband to separate. It is also known as redemption of talaq.
If you and your partner mutually agree to separate and your husband does not want to initiate via talaq, then khul' is an option for you both. If you have even agreed on your separation agreement, then khul' becomes the simplest option for you. In this case, the timeline can be very fast, from 6 to 9 months.
Khul' can also be used in a non-mutual separation initiated by the wife. This may be where you and your partner have not agreed on the terms of separation, particularly on the token amount that needs to be paid. Be aware that this may take anywhere from 1-2 years to resolve in court, depending on your circumstances.
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3. Talaq
You can ask your husband to invoke talaq, if your separation is mutual. Although you cannot initiate this yourself, if your relationship is good with your husband, this route is the quickest to go your separate paths.
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For both male and female:
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1. Fasakh
The fasakh separation path is somewhat unique, as it results in an annulment of marriage rather than a divorce. This means that the marriage never existed in the first place, and will never be recognized as one which had existed.
In general, using fasakh it is mostly easier for woman, as the majority of applicable grounds are focused on a failure of duty or character by a husband.
If you are a man and you choose this separation path, there are a few grounds that are still applicable for you. Use our Questionnaire before reaching out to your advisors. It will give them a head start in understanding your specific situation.
Can my wife pronounce talaq?
Talaq al tafwid, the practice where the husband delegates his right to pronounce talaq to his wife, is not commonly practiced in Malaysia.
Which separation path is suitable for me?
Ultimately, it all depends on your relationship with your partner. The more open, transparent and aligned in your feelings and thoughts regarding separation, the more you can tend towards a mutual separation via talaq.
If you have conflicting opinions on your relationship, this is where non-mutual separation takes place, usually through talaq, fasakh or khul'.
Cases for divorce for muslims can be complex, as they involve a blend of legal and religious elements.
My husband has passed away, how can I separate?
In this case, it is best to apply under fasakh. You will need supporting documentation to prove this case of separation.
What is the best way to talk to separation support services?
Fill out our Questionnaire and send it to them, so they can understand your situation. They then may reach out to you to learn more about you and your case. As you talk to them, feel free to use the method that makes you most comfortable, whether virtually or in-person.
Your aim should be to find a service provider that makes you feel at ease throughout the process.
Are there any arrangements I need to make along the way?
Yes. As you proceed down your separation path, you should think about the impact to your family and daily life. Think practically:
A place for your children to live.
How to break the news to them, friends and family.
Plans for where you will live.
How much income you will need to sustain your lifestyle.
What will happen to your assets and debt.
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Taking time to reflect on your situation is important. Use our Questionnaire to document it all in a single place.
Finances
Separation has the possibility to change lives, both in a positive and negative manner. Ensure that you understand what separating may mean to your finances, and what you need to achieve a result that is fair for you and your partner.
How much does it cost to separate?
It depends on how mutual the separation is between you and your partner.
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For a simple case where you both agree on your separation agreement, legal fees can be below RM 5,000. However, where the case is complex and you and your partner are not aligned, costs can run into the tens of thousands.
Generally speaking, if you need to go to court at any point, the costs will escalate quickly.
It is in your best interest to try and avoid this; an option that we at My Separate Path also encourage.
What is the cost breakdown?
For a simple separation, some indicative fees could be:
Court fees < RM 1,000.
Legal fees < RM 5,000.
Divorce registration cost < RM 20.
Property Sale Costs follow standard stamp duty and legal costs.
Property Transfer Costs are exempt on stamp duty between husband and wife.
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Use our Questionnaire to send to a few service providers so you can understand the current market practices.
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How can I pay for my separation costs?
Typically people pay for their separation through personal savings or through a personal bank loan.
Some people take loans from their friends or family, or some sell an asset that they own.
Your own individual situation is unique, so you must assess your potential costs and how to fund them.
How are my assets going to be separated in court?
Under Syariah law, there are various mechanisms on how assets are split in a divorce.
Generally speaking, only assets that were acquired during the marriage are split, based on how each party contributed towards them. This also includes contribution in non-monetary ways, for example if one party was a primary caregiver.
This also holds true for any liabilities or debt in the same marriage period.
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The court will look at both parties and decide on an asset split based on their future earnings potential, lifestyle and needs. This is especially the case where children are involved.
What assets get split?
Under Syariah law, everything of significant value that you and your partner accumulated during your marriage may be considered to be split. This includes vehicles, property, cash and even EPF.
Your liabilities will also need to be split, including bank or car loans, PTPTN and other debt.
How do I calculate my assets?
Use our Questionnaire to document all of the assets that you and your partner own. This will make it easier for your support services to understand the complexity of your case and minimize your cost in the separation process.
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Make sure that you know which of your assets and liabilities were acquired during your marriage.
Do I need an accountant or financial advisor?
Maybe. It all depends on how savvy you are with your finances.
A good accountant or financial advisor can help you understand all of your numbers, ensuring that you, and eventually the court, don't miss anything.
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In particular, if you are selling property to your partner, you may have to pay Real Property Gains Tax (RPGT). So, financial advice could be necessary if you're not aware of how this works.
Property
The property that you and your partner own will also need to be split, and/or your living arrangements settled for you and your family. This is one of the most complicated items to settle.
What happens to our shared property?
If you and your partner are amicable in your separation, one of you may decide to buy out the other party. This is the easiest option.
Alternatively, you may decide to sell the property and split the proceeds in a way that you both agree upon; either through self service separation or mediated separation.
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If you choose the path of mediated or court decided separation, the fate of your property will most likely be left to the court. They may choose to place any property in the hands of one of you, depending on your current and future circumstances.
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Remember, in the case of a separation under Syariah law, this is only for property acquired during marriage together.
How much is my property worth?
You can do a quick check for similar properties around your area on PropertyGuru or iProperty.
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However, if you want a professional opinion which may be useful later on, then we suggest to engage a valuation consultancy. They will calculate a price on the value of your particular property and issue an official report.
This is especially useful if you and your partner cannot agree to the value of your property when calculating your assets and liabilities.
What happens to my housing loan?
If your housing loan has both of your names as co-borrowers, you will need to arrange with the bank to change this. You or the court may decides this, depending on your separation path.
That being said, it is still ok to keep both of your names as co-borrowers even after you separate. This will need very strong communication and trust between you and your now ex-partner.
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If you decide to buy out your partner from your property, you will need a new loan from the bank, based on your own income, assets etc.
Talk to your bank early for any of these options, it could take some time.
Do I have to move out post separation?
Not at all. If you and your now ex-partner are on good terms and separate mutually, you can have any living arrangement that works for you.
If you and your partner separate through a non-mutual process, the wife has the right to stay in the marital home, as long as the husband cannot find another suitable place for the wife to live.
This holds for as long as the iddah period is valid or if there are children involved during their guardianship period.
If the wife has remarried, the ex-husband has the right to apply to court for the return of the marital home.
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Even if you do decide to move out at any point during the separation process, it does not mean that you lose the asset. This is a misconception that many people have.
How do I sell my property to my partner?
Just like any other property sale, this involves the Land Office, where the title of the property can be transferred officially once you sell to your partner.
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Documents required may include:
1. The Sales and Purchase Agreement (SPA) that has been executed and stamped between you and your partner.
2. The original SPA of the property.
3. The Memorandum of Transfer (MOT).
4. Quit rent payment receipt of the current year.
5. Latest Assessment Tax payment receipt.
6. The original land title.
7. Deed of Assignment if the bank still holds your title.
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You will need to pay stamp duty, legal fees and potentially Real Property Gains Tax (RPGT).
It is worthwhile engaging a conveyancing lawyer to assist you.
What if I want to transfer my property to my partner?
The Land Office also regulates such processes. In general it is much simpler than a property sale and takes from between 3-7 months, depending on the type of property.
Stamp Duty is exempt between husband and wife transfers. However if transferring to other family members, this exemption is capped for properties up to RM 1,000,000.
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Also to note, a transfer of property can only take place if the housing loan has been fully settled. If this is not the case, you or your partner will need to settle the loan first. If this is your situation, talk to your bank about possible solutions.
Family
Finding the best way to sort out the separation with your family is a challenge, particularly if you have children that still require parental support.
Can my child decide who they want to stay with?
Yes, your child can have a view on who they want to stay with. That being said, if your separation is a decided in court, the judge will only take this into consideration as part of their final decision.
Custody will stop when your child reaches legal age, or in the case for children with special needs, when deemed appropriate by the court.
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How does the court decide hadhanah?
Under hadhanah, the number one priority of the court is the well being of the children. This means the court will take into account who has the necessary means to support any children as they grow. This includes financially as well as emotionally.
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If your child is an infant, then usually the court allows them to stay with their mother until the age of 7 for a boy, or 9 for a girl. Under certain circumstances, this can be extended to age 9 and 11 respectively.
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After this age, the children will stay with their father until they are of legal age, when they can then decide themselves.
Can I visit my children if I don't get custody?
Yes, usually the court will decide on a visitation plan, assuming that you and your partner cannot come to an agreement yourselves.
How do we tell our family about our separation?
There are many ways to do this, depending on the maturity of your family members. In particular, if you are going to tell your children, it is important that you and your partner are calm, rational and respectful towards each other. This sets a positive tone towards your children.
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For your other friends and family members, you will need to gauge the right timing and method of communication yourselves. Sometimes a coach or religious advisor can help you in this; so don't be afraid to get the support you need.
How are my pets taken care of in a separation?
Under Syariah law, pets are not recognized in any way if you and your partner allow the court to decide on your separation.
So, it is best that you work out an arrangement between yourselves for any pets in your family. This can then be presented to the court.
Can I ruju after I divorce?
It depends on how the separation took place.
Ruju is only possible for the first and second talaq. Once the third talaq has been pronounced, it is no longer possible.
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The Ruju period starts from when the divorce is finalized and registered, and ends at the finalization of the iddah period, usually 3 months later. Once iddah is over, ruju is not possible.
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Remember to record your reconciliation with the Registrar within 7 days, or you may be fined.
Ruju is not possible under khul', fasakh and li'an.
Can I claim child maintenance post divorce?
The court can order a husband to pay ongoing maintenance to his ex-wife where there are children involved post separation. This is after any applicable iddah period has ended.
The amount is based on the earnings and future potential of the husband as well as the needs of the children. The length of time maintenance is payable generally expires when the child is 18 years old. However, there are exceptions to this, and must be applied in court.
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The wife is also allowed to claim for child maintenance payments that were not being paid by the husband. A submission to court to recover this must be undertaken.
Legal
Almost every separation case requires legal support, even if they are truly mutual. It is always advisable to find an independent support service to make sure everybody's best interests are taken care of legally.
Do we need a lawyer?
Because Syariah law in Malaysia can differ from state to state in its interpretation, generally you will need a lawyer to assist you, regardless whether your separation is mutual or not. Use them wisely so as to make sure you get the best value for your money.
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There is no right or wrong decision about engaging a lawyer. Even a mutual separation may benefit from one, as they can provide an independent opinion on your self drafted separation agreement.
This ensures that all parties are clear that any documents you agree on are legally enforceable.
What questions should I ask my lawyer?
Ask your lawyer questions about the separation process, the potential outcomes and timelines. Before talking to them, fill out and send them our Questionnaire so that they can from a view on your situation.
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You can also download a list of questions from us to ask them.
What are the requirements for divorce?
By law, you and your partner must be married for at least 2 years. This is irrespective of which separation path that you choose.
If you are not married for 2 years, there is an appeal process based on 'exceptional circumstances or hardship'.
To go down this route, you will need a lawyer to assist you.
What law do divorces fall under?
Divorce law for Muslims are governed at the state level, meaning each state has their own specific laws.
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Generally speaking they are based on the Islamic Family Law (Federal Territories) Act (IFLA) 1984. Some states apply it identically, others add their own interpretations.
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This is why it is important to appoint a lawyer, familiar with the law that may apply to your unique situation.
We made a pre-nup, is it valid?
The IFLA in each state does not explicitly mention anything referring to whether a pre-nup is valid or not.
Generally speaking, pre-nups under Syariah law are not enforceable, as they refer to assets acquired before a marriage.
A court will have a final decision on the how they view any pre-nup that you and your partner have agreed on.
Can I claim nafkah iddah?
If your separation involves an iddah period, then yes, the wife is entitled to nafkah iddah for this period. It needs to be documented as part of the divorce registration.
The amount is based on what the wife needs to sustain the same lifestyle as she had during the marriage.
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The exception to this is if the wife is nusyuz. The court may decide in this case that nafkah iddah is not to be paid.
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The wife is also allowed claim for nafkah that was not paid during the marriage period and is in arrears.
When can I apply for mut'ah?
The request for mut'ah from a wife must be made through the court. If not mutually agreed upon, the court calculates it based on the length of marriage and the earnings potential of the husband.
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Claiming mu'tah is generally possible in all cases of divorce except fasakh. However, there are always exceptions to the general rule. Your advisor should outline these to you, based on your situation.
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If the wife is nusyuz, this may impact the amount of mu'tah claimable in a separation.
If I am a foreigner, can I still divorce in Malaysia?
If you and your partner were married under the law in Malaysia, then yes, you can follow the same separation process.
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If you were not married in Malaysia, but live in Malaysia, this is a more complex case. You may perform the lafez cerai at any recognised Syariah body in your country. A divorce certificate from this recognised body must be obtained and then upon return to Malaysia, the divorce can be registered at Jabatan Agama Islam Negeri.
I can't afford a lawyer, what can I do?
You can apply to the Legal Aid Department (LAD) under Jabatan Bantuan ​Guaman (JBG). Lawyer costs are subsidized, so depending on the complexity of your case, your cost will vary. Court costs however, are free.
The Bar Council Legal Aid Centre (LAC) also provides similar legal advice to the LAD. Under their support, costs for a lawyer are free. However, the costs for the court must be paid by you as usual.
It is best to contact each organization for the most updated details and your applicability, based on your income and situation.
Specifically for Muslim woman, you may also contact the Sisters in Islam Telnisa clinic for free legal advice.
What is the appeal process?
Divorce outcomes are appealable under Syariah law, except where a ruling was performed with the hakam.
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To appeal you must talk to your lawyer about the process and timeline for each state's Syariah appeal court.
Where can I find more information about the divorce process?
Jabatan Agama Islam Negeri in each state is the official source for Muslim marriage and divorce registrations in Malaysia. You can find official forms and documents required there.
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