Divorce in Malaysia is governed by Law Reform (Marriage & Divorce) Act 1976 (“the 1976 Act”). A divorce can be initiated by joint petition (both agreed to divorce) or by unilateral petition where only one party intends to file a divorce.
The common issue usually faced by the spouse are the division of matrimonial assets, spouse maintenance and custody of the child/children of the marriage.
This article will focus on the custody of child/children and it aims to clarify the misconception of “the wife will always get the custody of the child/children”.
Definition of child (Section 2 &87 of the 1976 Act)
- Under the age of eighteen (18) years old;
- Child includes illegitimate child of, and a child adopted by, either of the parties to the marriage in pursuance of an adoption order made under any written law relating to adoption.
Factors to be considered in deciding the custody of the child (Section 88 of the 1976 Act)
- In deciding in whose custody a child should be placed, the paramount consideration that are taken into account by the court shall be the welfare of the child.
- Consideration should be given to the age, sex, religion of the child, the customs of the place where the child was brought up, the background, race, cultur and behaviour of the parents, the educational and material advantages that would be enjoyed by the child, the child's health, and the changes he/she would encounter must also be taken into account. (Loura Dorris A/P Laurence vThuraisingam A/L James  2 MLJ 229)
- The court shall have regard to the wishes of the parents of the child; and to the wishes of the child, where he or she is of an age to express an independent opinion.
- There is a perception that if one party committed adultery, he/she is not entitled to custody of child. However, that is not always the case.
- In Khoo Cheng Nee v Lubin Chiew Pau Sing  4 MLJ 171, it was held that adultery, although frowned upon by our society, by itself is not a sufficient ground to disqualify a mother from having custody of her children. Merely that another person has emerged in the petitioner's life was not necessarily by itself bad for the children.
Rebuttable Presumption in favour of mother (Section 88(3) of the 1976 Act)
- In a situation where the child is below the age of seven (7) years old, a rebuttable presumption will be invoked i.e it is for the good of a child below the age of seven (7) years to be with his or hermother.
- In deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody.
- However, the presumption is rebuttable and the onus to rebut such presumption lies on the husband.
- For example, in the High Court case of Dang Chooi Ping v Lim Eng Kok  6 MLJ 401, the husband has successfully rebutted the presumption by proving to the court that the wife had physically abused the children in multiple forms. She was unfit to have custody, care and control of them.
Nevertheless, in a dispute of the custody of the children, no matter who gets the custody, the biggest victim is the child. Therefore, we always advice our client to mediate their family dispute and propose the available option(s) that is for the best interest of the children.