(MY) Divorce AND Matrimonial Proceedings Rules 1980 (P PDF

Preview

Summary

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexisDate and Time: Friday, 24 April, 2020 9:31:00 PM MYT Job Number: 115360217Document (1)1. (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.(A) 32/1980)Client/Matter: -None- Search Terms: divorce and ma...

Description

Date and Time: Friday, 24 April, 2020 9:31:00 PM MYT Job Number: 115360217

Document (1) 1. (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) Client/Matter: -NoneSearch Terms: divorce and matrimonial proceedings rules 1980 Search Type: Terms and Connectors Narrowed by: Content Type MY Legislation

Narrowed by -None-

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis

(MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) Unannotated Statutes of Malaysia - Subsidiary Legislations

Unannotated Statutes of Malaysia - Subsidiary Legislations > DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980)

DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) ARRANGEMENT OF RULES RULES PRELIMINARY 1. Citation and commencement 2. Interpretation 3. Application of other rules PART II COMMENCEMENT, ETC, OF PROCEEDINGS 4. Application under section 50 of the Act 5. Proceedings after service of application under section 50 of the Act 6. Discontinuance of cause before service of petition 7. Cause to be begun by petition 8. Contents of petition 9. Signing of petition 10. Presentation of petition 11. Parties PART III SERVICE OF PETITION, ETC 12. Service of petition 13. Notice of intention to defend 14. Consent to the grant of a decree PART IV PLEADINGS AND AMENDMENT 15. Supplemental petition and amendment of petition 16. Filing of answer to petition

Page 2 of 52 (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) 17. Filing of reply and subsequent pleadings 18. Filing of pleading after directions for trial 19. Contents of answer and subsequent pleadings 20. Allegation against third person in pleading 21. Service of pleadings 22. Supplemental answer and amendment of pleadings 23. Particulars PART V PREPARATION FOR TRIAL 24. Discovery of documents in defended cause 25. Discovery by interrogatories in defended cause 26. Medical examination in proceedings for nullity 27. Conduct of medical examination 28. Order for transfer of cause 29. Directions for trial 30. Determination of place of trial 31. Directions as to allegations under sections 54 (1)(b) of the Act PART VI EVIDENCE 32. Evidence generally 33. Evidence by affidavit, etc 34. Evidence of marriage outside Malaysia 35. Issue of witness summons or subpoena PART VII TRIAL, ETC 36. Mode and place of trial 37. Trial of issue 38. Further provisions as to date of trial 39. Disposal of causes in special procedure list 40. Right to be heard on ancillary questions 41. Respondent's statement as to arrangements for children 42. Order as to arrangements for children to be drawn up 43. Restoration of matters adjourned etc, at the hearing 44. Application for re-hearing PART VIII

Page 3 of 52 (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) DECREES AND ORDERS 45. Decrees and orders 46. Application under section 77 of the Act 47. Copies of decrees and orders 48. Service of order 49. Service of decree or order requiring act to be done 50. Intervention to show cause by the Attorney General 51. Intervention to show cause to be tried in the High Court 52. Rescission of decree nisi by consent 53. Decree absolute on lodging notice 54. Decree absolute on application 55. Indorsement and certificate of decree absolute PART IX ANCILLARY RELIEF 56. Application by petitioner or respondent for ancillary relief 57. Application by guardian etc for ancillary relief in respect of children 58. Application in Form 11 or 12 59. Application for ancillary relief after order of Magistrate's Court 60. Children to be separately represented on certain applications 61. General provisions as to evidence etc on application for ancillary relief 62. Evidence on application for property division or avoidance of disposition order 63. Evidence on application for variation order 64. Service of affidavit in answer or reply 65. Investigation by registrar of application for ancillary relief 66. Applications heard by registrar 67. Application heard by judge 68. Transfer of application for ancillary relief general provisions 69. Transfer to High Court for purpose of expedition 70. Arrangements for hearing of application, etc by judge 71. Request for periodical payments order at same rate as order for maintenance pending suit PART X ENFORCEMENT OF ORDERS 72. Enforcement of order for payment of money, etc 73. Judgment summonses general provisions. 74. Committal and injunction 75. Removal of an order of a Sessions Court into High Court

Page 4 of 52 (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) PART XI APPLICATIONS RELATING TO CHILDREN 76. Custody, care and supervision of children 77. Removal of child out of Malaysia 78. Reference to welfare officer 79. Notice of other proceedings relating to children PART XII OTHER APPLICATIONS 80. Application for declaration affecting matrimonial status 81. Application for declaration of legitimacy etc 82. General provisions as to proceedings under Rule 80 or 81 PART XIII DISABILITY 83. Person under disability must sue by next friend, etc 84. Service on person under disability 85. Petition for nullity on ground of insanity, etc 86. Separate representation of children PART XIV PROCEDURE: GENERAL 87. Service out of Malaysia 88. Service by post 89. Service of documents where no special mode of service prescribed 90. Proof of service by officer of court, etc 91. Mode of making applications 92. Appeal from registrar in Subordinate Court proceedings 93. No notice of intention to proceed after year's delay 94. Mode of giving notice PART XV COST, ALLOWANCES AND COURT FEES 95. Costs discretionary 96. Scale of costs 97. Allowances 98. Court fees

Page 5 of 52 (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) PART XVI MISCELLANEOUS 99. Inspection etc of documents retained in court 100.Enlargement of time 101.Enlargement by consent 102.Irregularities 103.Scandalous matter 104.Present practice 105.Practice to be observed in registries and divorce courts. 106.Revocation PART XVII APPEAL 107.Appeal SCHEDULE: FORMS IN exercise of the powers conferred by section 108 (1) of the Law Reform (Marriage and Divorce) Act 1976 [Act 164], the Rules Committee makes the following Rules: PART I PRELIMINARY1. Citation and commencement

These Rules may be cited as the Divorce and Matrimonial Proceedings Rules 1980, and shall come into force on the same day as the Law Reform (Marriage and Divorce) Act 1976 [Act 164]. 2. Interpretation (1) In these Rules, unless the context otherwise requires— “Act” means the Law Reform (Marriage and Divorce) Act 1976 [Act 164]; “ancillary relief” means— (a) an avoidance of disposition order; (b) a financial provision order; (c) an order for maintenance pending suit; (d) a property adjustment order; or (e) a variation order; “avoidance of disposition order” means an order under section 102 of the Act; “defended cause” means a cause not being an undefended cause; “directions for trial” means directions for trial given under Rule 29;

Page 6 of 52 (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) “district registry” means any district registry having a divorce court within its district under section 2 (2) of the Act; “judge” means a judge of the High Court and includes a Judicial Commissioner and under section 2 (2) of the Act, a President of the Session Court; “matrimonial proceedings” means any proceedings with respect to which rules may be made under section 108 (1) of the Act; “notice of intention to defend” has the meaning assigned to it by Rule 13; “person named” includes a person described as “passing under the name of A.B”; “registrar” in relation to proceedings pending in a High Court shall mean the registrar or one of the registrars of that court as the case may be and includes a deputy or assistant registrar, or under section 2 (2) of the Act, in relation to proceedings pending in a Sessions Court shall mean the President of that court; “senior registrar” means the senior registrar of the divorce registry or, in his absence, the senior of the registrars in attendance at the divorce registry; “undefended cause” means— (a) in the case of an application under section 50 of the Act, a cause in which the respondent has not given notice of intention to defend within the time limited; (b) in any other case— (i)

a cause in which no answer has been filed or any answer filed has been struck out; or

(ii) a cause which is proceeding only on the respondent's answer and in which no reply or answer to the respondent's answer has been filed or any such reply or answer has been struck out; or (iii) a cause to which Rule 16 (4) applies and in which no notice has been given under that rule or any notice so given has been withdrawn; “variation order” means an order under sections 83, 84, 96 and 97 of the Act; (2) Unless the context otherwise requires, a cause begun by application shall be treated as pending for the purposes of these Rules notwithstanding that a final decree or order has been made on the petition. (3) In these Rules a form referred to by number means the form so numbered in the Schedule, or a form substantially to the like effect, with such variations as the circumstances of the particular case may require. (4) In these Rules, any reference to an Order and rule is— (a) if prefixed by the letters “S.C.R”, reference to that Order and rule in the Subordinate Courts Rules 1980; and (b) if prefixed by the letters “R.H.C”, a reference to that Order and rule in the Rules of the High Court 1980. (5) Unless the context otherwise requires, any reference in these Rules to any rule or enactment shall be construed as a reference to that rule or enactment as amended, extended or applied by any other rule or enactment. 3. Application of other rules (1) Subject to these Rules and to any other written law, the Subordinate Courts Rules 1980 and the Rules of the High Court 1980 shall apply with necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceeding spending in the Sessions Court and in the High Court respectively.

Page 7 of 52 (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) (2) For the purposes of paragraph (1), any provision of these Rules authorising or requiring anything to be done in matrimonial proceedings shall be treated as if it were, in the case or proceedings pending in the High Court, a provision of the Rules of the High Court 1980. PART II COMMENCEMENT, ETC, OF PROCEEDINGS4. Application under section 50 of the Act (1) An application under section 50 of the Act for leave to present a petition for divorce before the expiration of two years from the date of the marriage shall be made by originating application. (2) The application shall be filed in the court to which it is proposed to present the divorce petition, together with— (a) an affidavit by the applicant exhibiting a copy of the proposed petition and stating— (b) the grounds of the application; (ii) particulars of the exceptional circumstances or hardship alleged; (iii) whether there has been any previous application for leave; (iv) whether any, and if so what, attempts at reconciliation have been made; (v) particulars of any circumstances which may assist the court in determining whether there is a reasonable probability of reconciliation between the parties; and (vi) the date of birth of each of the parties or, if it be the case, that he or she has attained 18; (b) a copy of the application and of the supporting affidavit for service on the respondent; and (c) unless otherwise directed on an application made ex parte, a certificate of the marriage. 5. Proceedings after service of application under section 50 of the Act (1) If, within the time limited, the respondent gives notice of intention to defend an application under section 50 of the Act in the case of proceedings in a Sessions Court, the registrar shall order that the application be transferred to the High Court. (2) The application shall be heard by a judge and shall, unless otherwise directed, be heard in chambers. (3) Subject to this Rule, these Rules shall, so far as applicable, apply with necessary modifications to the application as if the originating application were a petition and the applicant a petitioner. 6. Discontinuance of cause before service of petition Before a petition is served on any person, the petitioner may file a notice of discontinuance and the cause shall thereupon stand dismissed. 7. Cause to be begun by petition (1) Every cause other than an application under section 50 of the Act shall be begun by petition. (2) Where a petition for divorce, nullity or judicial separation discloses that there is a minor child of the family who is under 16 or who is over that age and is receiving instruction at an educational establishment or undergoing training for a trade or profession, the petition shall be accompanied by a separate written statement containing the information required by Form 4, to which shall be attached a copy of any medical report mentioned therein. (3) Where a petition for divorce alleging two years' separation contains a proposal by the petitioner (not being a proposal agreed between the petitioner and the respondent) to make financial provision for the respondent, the petition shall be accompanied by an affidavit by the petitioner giving brief particulars of his means and commitments. 8. Contents of petition (1) Unless otherwise directed, every petition, other than a petition under Rule 80 or 81, shall contain the information required by Form 2 as near as may be in the order there set out and any further or other information required by such of the following paragraphs of this Rule as may be applicable. (2) A petition for divorce, nullity or judicial separation— (a) shall state whether or not there are to the knowledge of the petitioner any proceedings continuing in any country outside Malaysia which are in respect of the marriage to which the petition relates or are capable of affecting its validity or subsistence; and

Page 8 of 52 (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) (b) if there are any such proceedings, shall give particulars of them including— (i)

the court in or the tribunal or authority before which they were begun;

(ii) the date when they were begun; (iii) the names of the parties; (iv) the date, or as the case may be, the expected date of any trial in the proceedings; and (v) such other facts as may be relevant to the question whether the proceedings on the petition should be stayed. (3) For the purposes of paragraph (2) “proceedings continuing in any country outside Malaysia” includes any proceedings which are not instituted in a court of law in that country, if those proceedings are instituted before a tribunal or other authority in that country having power under the law having effect there to determine questions of status, and proceedings shall be treated as continuing in a country outside Malaysia if they have been begun and have not been finally disposed of. (4) A petition for a decree of nullity under section 68 of the Act shall state whether the petitioner was at the time of the marriage ignorant of the fact alleged. (5) A petitioner who intends to adduce evidence that a person— (a) was found guilty of adultery in matrimonial proceedings or was adjudged to be the father of a child in affiliation proceedings before a court in Malaysia, must include in his petition a statement of his intention with particulars of— (i)

the finding or adjudication and the date thereof;

(ii) the court which made the finding or adjudication and the proceedings in which it was made; and (iii) the issue in the proceedings to which the finding or adjudication is relevant. 9. Signing of petition Every petition shall be signed by the advocate and solicitor of the petitioner in his own name or the name of his firm, or by the petitioner if he sues in person. A joint petition under section 52 of the Act shall be signed by the solicitors of both parties in their name or the name of their firms or by the petitioners if they act in person. 10. Presentation of petition (1) A petition, other than a petition under Rule 80 and 81, may be presented to any court. (2) Unless otherwise directed on a petition made ex parte, a certificate of the marriage to which the cause relates shall be filed with the petition. (3) Where there is before a court a petition which has not been dismissed or otherwise disposed of by a final order, another petition by the same petitioner in respect of the same marriage shall not be presented without leave granted on a petition made in the pending proceedings. (4) The petition shall be presented by filing it, together with any statement, report and affidavit required by Rule 8 (2) and (4), in the court office, with as many copies of the petition as there are persons to be served and a copy of the statement, report and affidavit required by Rule 8 (2) and (4), for service on the respondent spouse. 11. Parties (1) Subject to paragraph (2), where a petition alleges that the respondent has committed adultery, the person with whom the adultery is alleged to have been committed shall be made a co-respondent in the cause unless— (a) that person is not named in the petition and, the petition contains a statement that his or her identity is not known to the petitioner; or (b) the court otherwise directs.

Page 9 of 52 (MY) DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980 (P.U.(A) 32/1980) (2) Where a petition alleges that the respondent has been guilty of rape upon a person named, then, notwithstanding anything in paragraph (1), that person shall not be made a co-respondent in the cause unless the court so directs. (3) Paragraph (1) does not apply where the person named has died before the filing of the petition. PART III SERVICE OF PETITION, ETC12. Service of petition

(1) Subject to this Rule and Rules 84 and 87, a copy of every divorce petition shall be served personally or by post on every respondent or co- respondent. (2) Service may be effected— (a) where the party to be served is a person under disability within the meaning of Rule 83, through the petitioner; and (b) in any other case, through the court or, if the petitioner so requests, through the petitioner. (3) Personal service shall in no case be effected by the petitioner himself. (4) A copy of any petition which is to be served through the court shall be served by registered post by an officer of the court. (5) For the purposes of paragraphs (1) to (4) a copy of a petition shall be deemed to be duly served if— (a) an acknowledgement of service in Form 6 is signed by the party to be served or by a solicitor on his behalf and is returned to the court office; and (b) where the form purports to be signed by a respondent spouse, his signature is proved at the hearing. (6) Where a copy of a petition has been sent to a party and no acknowledgment of service has been returned to the court office, the registrar, if satisfied by affidavit or otherwise that the party has nevertheless received the document, may direct that the document shall be deemed to have been duly served. (7) Where a copy of a petition has been served on a party personally and no acknowledgment of service has been returned to the court office, service shall be proved by filing an affidavit of service showing, in the case of a respondent, the server's means of knowledge of the identity of the party served. (8) Where an acknowledgment of service is returned to the court office, the registrar shall send a copy thereof to the petitioner. (9) An application for leave to substitute some other mode of service for the modes of services prescribed in paragraph (1), or to substitute notice of the proceedings by advertisement or otherwise, shall be made ex parte by lodging an affidavit setting out the grounds on which the application is made; and the form of any advertisement shall be settled by the registrar. (10) Where it appears necessary or expedient t...