Know your rights before splitting up

The Star (Used by permission)
PUTIK LADA by ANDY LOW HANN YONG

Filing for divorce is just the tip of the iceberg. Stepping into court proceedings that can often stretch on for years may then open a can of worms.

A FRIEND just asked me over tea the other day: “Doesn’t it affect you on a personal level how you view the institution of marriage when you constantly need to deal with messy divorces and ugly custody fights?”

Now, I would just be putting on a facade if I were to say that these highly emotionally charged episodes leave little effect on me.

I may be a lawyer, but beneath the impartiality required of the profession I am still a person with feelings.

It is hard not to show sympathy when a couple are seated right across me with expressions so broken from an intimate relationship turned sour, after just several months into married life.

The vows to love and cherish one another for better, for worse, for richer, for poorer, in sickness or in health, till death do us part, have now turned into nothing more than unfulfilled promises.

No doubt many couples are often misled by the fantasised notion of marriage.

Many, sometimes in their naivety or by choosing to disregard the reality of married life, jump onto the bandwagon with little understanding of what is to come or what is to be expected.

When the bubble bursts, the fights and disagreements start to pour in, couples may throw in reasons such as infidelity, domestic violence, no longer being in love, or irreconcilable differences for their marriage breakdown.

I look into the issue of divorce with much concern, especially with the escalating number of divorce cases, both among Muslims and non-Muslims in Malaysia, in this modern day society.

Based on Malaysian National Registration Department statistics from 2000 to 2005, the rate of divorce is more severe among non-Muslims, and the rising trend of divorce is accompanied by an unsurprising drop in the number of marriages.

The divorce rate among non-Muslims escalated 169% between 2009 and 2010.

This may explain a certain reluctance to get married, and when individuals do get married, there is the risk of a higher possibility of divorce, which then provokes an instinctive response of being reluctant to get married, and it goes full circle.

Divorce may already be in the works for some from the moment the words “I do” are uttered, while some couples may discover their conflicting differences a little too late and will then contemplate divorce.

Whichever category that a couple may fall into, for whatever reasons it may be, whether it is a decision made mutually or not, it is crucial that couples are made aware of the divorce procedures, their rights, obligations towards the family, custody and care of their children and the division of their matrimonial assets before moving any deeper into the divorce process.

Filing for divorce is just the tip of the iceberg, and this is the stage where things may potentially get resolved amicably with mutual agreement or it can take a turn for the worse.

Stepping into court proceedings that can often stretch on for years may then open a can of worms. We may suddenly hear claims of emotional and physical abuse, gold digger accusations and twisted stories that would leave the public gallery cringing with fear for the next newly-married couple. Divorce proceedings not only can cost a sizeable chunk of one’s fortune but can also result in the destruction of one’s reputation.

And we have not even begun talking about the custody of the couple’s offspring or the maintenance of the wife and children.

Basically, in a single divorce petition, the Court will decide the custodianship after taking all factors into consideration, including the welfare of the child, the wishes of the parents and the wishes of the child if the child is eligible to express an independent opinion.

But, how is a child to decide when given the ultimatum to choose one parent over the other?

In any divorce case, it is my belief that everyone loses. True to Ralph W. Emerson’s quote of “for everything you gain, you lose something else”, in a divorce, nobody is left unscathed, and nobody wins entirely.

I view a lawyer’s job in a divorce case as upholding the honour of all affected parties, and to control any damage.

But for me, the child will always remain the biggest loser because, when a family institution falls apart, the child’s normal upbringing is in danger of going down with it.

The child is thrown into a world of confusion, torn between parents who are possibly at their wits’ end trying to win custody of their child.

Often in such a struggle, the child could grow up traumatised over the failure of the parent’s marriage or suffer the emotional scarring of having to live away from one parent at any one time.

The division of matrimonial assets is another matter of major concern.

I have seen property battles of epic proportions akin to dramatic soap operas seen on television.

Matrimonial property fights can range from who is getting the larger share of the matrimonial assets to something as trivial as a fight over the red two-seater sofa that has seen good times when the couple were still sharing a happy moment, laughing through an episode of How I Met Your Mother.

The hardest fact to swallow when it comes to divorce is that it is an issue that can happen to just about any married couple, with consequences that can spill over to generations with cries of depression.

But it is bizarrely comforting sometimes that there are also couples who have mutually filed for divorce and proceeded to walk out of the courthouse hand-in-hand, still in absolute serenity.

I would not wish for divorce upon any married couple if there is just that glimmer of chance for the salvation of their marriage.

But if it does come down to it, it is my desire that the couple should both be educated on all their rights before commencing divorce.

The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit www.malaysianbar.org.my.