Divorce : Grounds of Divorce

Grounds of Divorce

What are the grounds for Divorce?

Following Section 54(1) Law Reform (Marriage & Divorce) Act 1976, the petition (either the husband or wife) must show that the marriage has irretrievably broken down by showing one of the following grounds:

1. that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

2. that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

3. that the respondent has deserted the petitioner for a continuous period of at least two (2) years immediately preceding the presentation of the petition;

4.that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.

The content and materials on this website are intended for general information purposes only, and do not in any way constitute legal or other professional advice and shall not be relied on as such.

What are the procedures for a divorce?

What are the procedures for a divorce?

Divorce

There are two types of divorces namely:-

(a) Joint Petition – whereby both parties agree to the divorce; and

(b) Single Petition – whereby only one party petitions for the divorce.

Joint Divorce Petition

Joint Divorce Petition is filed by both parties who mutually consent to the divorce. The considerations that the parties need to deliberate are:-

(a) maintenance to the wife;
(b) maintenance to the Child/Children;
(c) custody of the Child/Children (whether to the wife or husband); and
(d) division of Matrimonial Assets.

Documents needed for the presentation of a Joint Divorce Petition:-

1.   Certificate of Marriage;

2.   Identification card of the parties;

3.   Birth Certificate of the Child/Children; and

4.   Documentation of the matrimonial asset(s).

Single Divorce Petition

Single Divorce Petition is filed by one party of the marriage (“Petitioner”) without the consent of the other party.

The Petitioner who files for a Single Divorce Petition must demonstrate that the marriage has irretrievably broken down by showing one of the following grounds namely:-

1.         the other party has committed adultery;

2.         the other party has behaved in such a way that the Petitioner could not reasonably be expected to live with the other party;

3.         the other party has deserted the Petitioner for a continuous period of at least two years before the presentation of the Single Divorce Petition; and

4.         that both parties have lived apart for a continuous period of at least two years immediately before the presentation of the Single Divorce Petition.

In such a case, the Petitioner needs to refer the marital problem to the Marriage Tribunal at the National Registration Department. The Marriage Tribunal would then try to reconcile the marriage. If the Marriage Tribunal fails to reconcile the parties, a declaration by the Marriage Tribunal will be issued to the parties. This declaration must be submitted together with the application for a Single Divorce Petition.

Court Grants a Divorce Petition

Once the High Court grants a Divorce Petition (either Joint Divorce Petition/Single Divorce Petition), the marriage is brought to an end and either party may marry again (as per Section 62 Law Reform (Marriage & Divorce) Act 1976)

Question : What if a Company failed to register the Charge (Form 34) within 30 days from the date of the Charge?

Question : What if a Company fails to register the Charge (Form 34) within 30 days from the date of the Charge?

Under the usual circumstances Form 34 (Registration of Charge) must be lodged with SSM within 30 days after the date of creation/acquisition/property being Charged (Section 108 and 110 Companies Act).

In the circumstance whereby a Charge is lodged AFTER 30 days from the date of creation/acquisition/property, Form 34 cannot be registered in the SSM UNLESS a Court Order for an extension of time is obtained.

How to obtain the Court Order for an extension of time?

Reference is made to Section 114 of the Companies Act, whereby the Company needs to file an Origination Summons together with an Affidavit in Support indicating, amongst other things, the following:-

How the Charge was created (the Facility by the Bank);

Exhibiting the Charge; and

Exhibiting the Form 34.

Once the Court Order is obtained, Form 34 together with the Court Order could be registered in SSM.

The fees for the registration of Charge would be RM300-00, fees for the Court Order would be RM50-00 and an additional fee of RM300-00 as costs to SSM (which may vary).

The content and materials on this website are intended for general information purposes only, and do not in any way constitute legal or other professional advice and shall not be relied on as such.

Question(s) : please direct to eremyphang@gmail.com

Reinstating a Company struck off by SSM

Question : If my Company is struck off by SSM for failing to file the Annual Returns and Financial Statements, can I reinstate my Company?

Usual circumstances whereby a Company is struck off would be that a Company failed to file the Annual Return and Financial Statement for a period of time.

Law to restore the Company to the Registrar.

It is provided that a Company can be restored to the Registrar of the Company under Section 308(5) of the Companies Act.

“308. Power of Registrar to strike defunct company off register.

“If any person feels aggrieved by the name of the company having been struck off the register, Court on an application made by the person at any time within fifteen years after the name of the company has been so struck off may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation or otherwise that it is just that the name of the company to be restored to the register, and upon an office copy of the order being lodged with the Registrar the company shall be deemed to have continued in existence as if its name had not been struck off, and the Court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off”

In Order to invoke Section 308(5) the Company must satisfy three limbs of the Act namely:

·          That the Applicant is a person aggrieved within Section 308(5)

·         That the application is made within 15 years after the Company has been struck off; and

·          That at the time of the striking off, the Company was carrying on business or in operation.

Steps to Take

The Company would need to file an Originating Summon in Court together with an Affidavit In Support indicating that the Company is still in operations together with proof e.g. latest Annual Return and Financial Statement and Assets of the Company.

This Originating Summon could be filed by the Lawyer appointed by the Company.

 

Prayer/Order which is needed from Court:

“bahawa nama syarikat ABC (No. Syarikat…) dimasukkan semula ke dalam daftar Syarikat Defendan menurut peruntukkan Seksyen 308(5) Akta Syarikat 1965”;

Once the Petition is filed, the Court may give directions: -

To file a further affidavit in Court to complete the unaudited balance sheet and profit and loss accounts for the Years which is has not complied with.

In the alternative to exhibit the unaudited balance sheet and profit and loos accounts for the current years and provided an undertaking to SSM to provide an audited accounts to the SSM in the near future. 

Affidavit should also contain a confirmation by the company to pay all fees and compounds to be, or as may be, imposed on it by the SSM, which may come up to RM2,000-00. 

Further enquiries please email to : eremyphang@gmail.com

 

The content and materials on this website are intended for general information purposes only, and do not in any way constitute legal or other professional advice and shall not be relied on as such.