CASE MANAGEMENT

FOR FAMILY MATTERS IN THE

HIGH COURTPREPARED BY

SITI HANUM BT MOHMAD SAH

AINUL AMIRAH BT ABDUL RAZAK

SENIOR ASSISTANT REGISTRAR SHAH ALAM HIGH COURT (CIV IL - FL JC)

CONTENT 1) INTRODUCTION TO FAMILY COURT

2) THE RELATED STATUTES AND RULES

3) REGISTRATION OF CASES

4) PROCEDURES

5) DECREE NISI & PROCEEDINGS THEREAFTER

6) EXECUTION & ENFORCEMENT OF ORDERS

INTRODUCTION TO FAMILY COURT

CASES HEARD AND GOVERNED UNDER THE FAMILY COURT;

◦ DIVORCE/DISSOLUTION OF MARRIAGE◦ JUDICIAL SEPARATION◦ NULLITY OF MARRIAGE◦ CHILD CUSTODY◦ MAINTAINENCE (FOR WIFE AND CHILDREN)◦ DISTRIBUTION OF MATRIMONIAL PROPERTY◦ FAMILY MATTERS FILED UNDER ORIGINATING SUMMONS (CODE 24)

* FOR NON-MUSLIM ONLY

STATUTES & RULES 1 – LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976

2 – DIVORCE AND MATRIMONIAL PROCEEDINGS RULES 1980

3 – HIGH COURT RULES 2012

4 – LEGITIMACY ACT 1961

5 – COURT OF JUDICATURE ACT 1964

REGISTRATION OF CASE ACCORDING TO CODES

A) CODE 33 – SINGLE PETITION UNDER SECTION 53, CONVERSION TO ISLAM UNDER SECTION 51, JUDICIAL SEPARATION UNDER SECTION 64, NULLITY OF MARRIAGE UNDER SECTION 68 AND 70 AND DECLARATION UNDER SECTION 107.

B) CODE 33JP – JOINT PETITION UNDER SECTION 52

C) CODE 24 – INVOLVES ANY CASE THAT FALLS UNDER SECTION 24 (a) AND (d) OF THE COURT JUDICATURE ACT 1964, FOR FAMILY CASES FILED UNDER ORIGINATING SUMMONS.

D) CODE 34 – LEGITIMACY OF A CHILD UNDER THE LEGITIMACY ACT 1961

PROCEDURES A) SINGLE PETITION UNDER CODE 33 (UNCONTESTED)

B) SINGLE PETITION UNDER CODE 33 (CONTESTED)

C) SINGLE PETITION UNDER CODE 33 – PETITION NOT SERVED

D) JOINT PETITION UNDER CODE 33JP

E) APPLICATION MADE VIA NOTICE OF APPLICATION

WORK FLOW

(DIVORCE CASES – SINGLE PETITION CODE 33)

PETITION SERVED (UNCONTESTED)

(1 MONTH)

(2-3 WEEKS)

REGISTRATION

FIRST CASE MANAGEMENT

PAPERS IN ORDER

ORDER IN TERMS

PAPERS NOT IN ORDER

FIX ANOTHER 1-2 WEEKS HEARING DATE

HEARING DATE

REGISTRATION Automatic level 1 e-filing will fix 1st CM in one month time.

FIRST CASE MANAGEMENT Court ensures service of the petition is perfected under (Rule 12 (1) – (8) of Divorce & Matrimonial Rules 1980) Petition is not contested where :a) Respondent comes to court, receives the petition and does not object to the terms.b) Respondent does not come to court even after being informed about the case management

date.Court ensures affidavit of service has been filed.If papers are in order, Court straight away fixes hearing date. Petitioner to file Notis Bicara % Arahan Perbicaraan.

SECOND CASE MANAGEMENT (if paper is not in order)

In the event where affidavit of service has not been filed or petition is not successfully served, Court fixes short date (1-2 weeks) pending hearing

HEARING DATE Papers in order, court to grant OIT.Documents involved;a) Petisyen Perceraian b) Afidavit menyokong petisyenc) Notis Perlantikan Peguamcarad) Notis Prosidinge) Pernyataan anak-anak (jika ada)f) Afidavit Penyampaiang) Notis Bicarah) Arahan Perbicaraan

DETAILED EXPLANATION

WORK FLOW

(DIVORCE CASES – SINGLE PETITION CODE 33)

PETITION SERVED (CONTESTED)

(1 MONTH)

(2 – 3 WEEKS)

(1 MONTH)

(2 WEEKS)

(2 WEEKS)

REGISTRATION

FIRST CASE MANAGEMENT

SECOND CASE MANAGEMENT

THIRD CASE MANAGEMENT/FINAL CASE MANAGEMENT

F

FINAL CASE MANAGEMENT

TRIAL

DECISION

FILE CLOSED

DETAILED EXPLANATIONREGISTRATION Automatic level 1 e-filing will fix 1st CM in one month time.FIRST CASE MANAGEMENT Court ensures service of the petition is perfected under (Rule 12 (1) – (8) of Divorce &

Matrimonial Rules 1980)

Service perfected, Respondent will have to file notice of intention to defend – an acknowledgment of service (Form 6) within 8 days after service of petition. (Rule 13 of Divorce & Matrimonial Rules 1980)

Respondent/ Co-Respondent will have 21 days after the expiry of the 8 days period to file an answer to the petition (Rule 16(1) of Divorce & Matrimonial Rules 1980)

Filing of an answer and reply to the answer each will be given 14 days to file (Rule 17 of Divorce & Matrimonial Rules 1980)

SECOND CASE MANAGEMENT Court directs parties to close pleadings within 1 month. In the event where the respondent has subsequent reply to the petitioners’ reply, he shall apply leave from the court. (Rule 17 of Divorce & Matrimonial Rules 1980) If the respondent has no subsequent reply, Court fixes a date for mediation and final case management before the Court. (O34 Rule 2 (2)(a) of The Rules of Court 2012)

THIRD CASE MANAGEMENT/FINAL CASE MANAGEMENT If mediation succeed, Court fixes a date before Judge for parties to record consent judgment. If mediation fails, Court directs parties to prepare 2 sets of BOP, CBOD and 1 set of SOAF, SOITBT, PCS, DCS, W/List, W/Statements AND court will fix a trial date.(O34 Rule 2(2) of The Rules of Court 2012) Court directs the parties to hand over hard copy of bundles to the court 2 weeks before trial or sooner.

TRIAL DATE Officers to make sure all documents for trial are complete and ready in court and also to make sure all witnesses to take stand are present in court. Proceed with trial. Documents involved;a) Bundle of Pleadingsb) Common Bundle of Documentc) Statement of Agreed Factsd) Issues to be Triede) Summary of Casef) List of Witnessg) Witness Statement

DECISION After petitioner and respondent are done with calling their witnesses and them giving statement and evidence and parties have submit their case, case is closed for trial. It depends on Yang Arif whether to give decision straight away or to fix another date for decision.

WORK FLOW

(DIVORCE CASES – SINGLE PETITION CODE 33)

PETITION NOT SERVED

(1 MONTH)

(2 – 3 WEEKS)

(1 MONTH)

(2 WEEKS)

REGISTRATION

FIRST CASE MANAGEMENT

SECOND CASE MANAGEMENT/SUBSTITUTED SERVICE HEARING

THIRD CASE MANAGEMENT

HEARING

PAPERS IN ORDER

ORDER IN TERMS

PAPERS NO IN ORDER

FIX ANOTHER 1-2 WEEKS HEARING DATE

FILE CLOSED

REGISTRATION Automatic level 1 e-filing will fix 1st CM in one month time.FIRST CASE MANAGEMENT Court directs service of petition or application for substituted service (SS) to be made within 2 weeks. 2 – 3

weeks CM date will be given. (*Rule 12 (9) Divorce & Matrimonial Proceedings Rules 1980 )

SECOND CASE MANAGEMENT/SS HEARING If SS application is filed, Court to grant OIT (papers in order).Documents involved;1) Notice of application2) Affidavit of support3) Affidavit of non-service

Petition will be struck off in the event of default of service/no SS application filed.(*Order 34 Rule 3 High Court Rules 2012)

Service of SS application to be made within 1 month. 1 month CM date is given

THIRD CASE MANAGEMENT If the petition is served, to fix hearing date within 2 or 3 weeks. If the petition is not served, to strike off the petition. Court directs petitioner’s to file Notis Bicara & Arahan Perbicaraan.

DETAILED EXPLANATION

HEARING DATE Papers in order, court to grant OIT.Documents involved;a) Petisyen Perceraianb) Afidavit menyokong petisyenc) Notis Perlantikkan Peguamcarad) Akuan Terima Penyampaiane) Notis Prosidingf) Pernyata anak-anak (jika ada)g) Perintah Penyampaian Ganti/Pengecualian serahan (jika ada)h) Afidavit Penyampaiani) Notis Bicaraj) Arahan Perbicaraan If papers not in order, new hearing date will be fix (within 1-2 weeks date)

WORK FLOW CHART

(DIVORE CASES – JOINT PETITION CODE 33JP)

REGISTRATION

HEARING DATE

PAPERS IN ORDER PAPERS NOT IN ORDER

FILE CLOSED

ORDER IN TERMS FIX ANOTHER HEARING DATE

REGISTRATION Automatic level one e-filing will fix 2 weeks hearing date before Judge

HEARING DATE Order is given if papers in order. Documents involved; - Petisyen Bersama- Afidavit Isteri- Afidavit Suami- Pernyata Anak-anak- Afidavit Pengecualian Kehadiran (If either parties can’t be present during hearing)

If papers not in order, Court will fix another hearing date (within 1 – 2 weeks date)

AFTER HEARING To update minutes (by interpreters)File closed.

DETAILED EXPLANATION

WORK FLOW

DIVORCE CASES

NOTICE OF APPLICATION

SERVED NOT SERVED

EX PARTE INTER PARTE

REGISTRATION (LEVEL 1 E-FILING) 1ST CM IN 2 WEEKS

1st CM TO MAKE SURE PAPERS

IN ORDER TO FIX HEARING DATE IN

2 WEEKS

HEARING COURT TO GRANT OIT IF PAPERS

IN ORDER

FILE CLOSED

REGISTRATION (LEVEL 1 E-FILING)

1ST CM IN 1 MONTH

1ST CM

1) COURT TO DIRECT PARTIES TO EXHAUST ALL AFFIDAVITS IN ONE MONTH -RESPONDENT’S TO REPLY WITHIN 14 DAYS -APPLICANT TO REPLY WITHIN 14 DAYS THEREAFTER

2) COURT TO FIX NEXT CM IN ONE MONTH

1ST CM

1) COURT TO DIRECT PARTIES TO FILE IN SUBSTITUTED SERVICE APPLICATION

2) COURT TO FIX 2 WEEKS FOR HEARING DATE

2ND CM

1) IF ALL AFFIDAVITS ARE EXHASUTED, COURT TO FIX HEARING DATE IN 2 WEEKS

2) PARTIES TO FILE IN WRITTEN SUBMISSION 1 WEEKS BEFORE HEARING DATE

2ND CM/HEARING

OIT IF THE SS APPLICATION FILED AND DIRECT SERVICE BY SS

STRIKE OUT IF NOT SERVED AND NO SS FILED

FIX NEXT CM IN 1 MONTH

3RD CM

IF SERVICE IS COMLETED, COURT TO FIX A HEARING DATE WITHIN 2 WEEKS

IF SERVICE IS NOT COMPLETED, ANOTHER ONE WEEK CM DATE

HEARING COURT TO GRANT OIT IF PAPERS IN ORDER

APPLICATION DISPOSED

HEARING COURT TO GRANT OIT IF PAPERS IN ORDER

APPLICATION DISPOSED

1 Substitutes Service (Ex-parte)(Rules 12 (9) DMPR 1980)

Documents involved;a) Notice of applicationb) Affidavit in supportc) Affidavit of non-service

2 Dispensation of Service (Ex-parte)(Rule 12 (10) DMPR 1980)

In situation where the Respondent is a foreigner and has gone back to their own country and cannot be located.Documents involved;a) Notice of applicationb) Affidavit in support (to exhibit report from the Immigration Department – in and

out (Malaysia) record of the Respondent, if any)3 Leave Application (Ex-parte)

(Can also be ex-parte to Inter-parte)Several types of leave application, such as;1) Leave for committal (Order 52 HCR 2012)

Documents involved;a) Notice of applicationb) Affidavit in supportc) Statement under O52 R3(2)

1) Leave to file re-joinder (Rule 17 (3) DMPR 1980)

Documents involved;a) Notice of Applicationb) Affidavit in Support

Types of Application made via Notice of Application

4 Variation of Decree Nisi(section 83, 84, 96 and 97 of the LRA 1976)

Variation as to the Decree Nisi for the arrangement of custody and maintenance. This application can be made ex-parte or inter-parte. Documents involved;a) Notice of Applicationb) Affidavit in support

6 Ancillary Reliefs Application under Rule 56 (3) DMPR 1980, Notice of Application under Form 11.

1 Declaration Under Rule 80 and 81 of the DMPR 1980 for marital status, declaration for legitimacy of a child and validity of a marriage.Application shall be made by petition.

1 Maintenance, custody and access Application made before initiate/ during divorce petition under code 33

2 Legitimacy of a child Can also be made under Originating Summons

3 Leave for exemption from the Marriage Tribunal Section 106 (1) LRA 1976

4 Leave to file a petition for divorce before 2 years Section 50 of the LRA 1976 and rule 7(1) DMPR 1980

Other application that related to Family/Divorce matter.

Application for Family matters that can be file under Originating summons (code 24)

DECREE NISI AND PROCEEDINGS THEREAFTER

Section 61 of Law Reform Marriage and Divorce Act 1976

-General rule is that, every decree shall not be made absolute before the expiration of three (3) months from its grant.

-However, the court may, upon the request of the parties and discretion of it, fixes a shorter period for example 1 month/2 months and also on the immediate effect for the decree to be made absolute.

-Rationale for 3 months period :- a period for reconciliation for the parties (if possible)

-If, after the expiration of 3 months no application for the decree to be made absolute by the party to whom it was granted, then the party against whom it was granted may make an application to rescind the decree nisi or make the decree absolute.

EXECUTION & ENFORCEMENT OF ORDERS

A) COMMITAL PROCEEDINGS – RULE 74 DMPR 1980 / ORDER 52 HIGH COURT RULES 2012

- PARTY INITIATING THE COMMITAL PROCEEDING MUST FIRST OBTAINED LEAVE FROM THE COURT WITH THE FILING OF NOTICE OF MOTION FOR COMMITAL.

- ONCE THE COURT LEAVE IS OBTAINED, THEN THE APPLICANT CAN PROCEED WITH THE COMMITAL PROCEEDINGS.

- DOCUMENTS INVOLVED ;◦ NOTIS USUSL◦ AFIDAVIT SOKONGAN◦ PENYATAAN MENURUT ATURAN 52 HIGH COURT RULES 2012

- SERVICE OF NOTICE OF COMMITAL PROCEEDINGS SHALL BE SERVE PRSONALLY TO THE RESPONDENT.

EXECUTION & ENFORCEMENT OF ORDERS

B) JUDGMENT DEBTOR SUMMONS – RULE 73 DMPR 1980 AND ORDER 48 OF THE RULES OF COURT 2012

- AN APPLICATION FILED UNDER FORM 17 AND SHALL BE SERVED PERSONALLY TO THE DEBTOR/RESPONDENT.

-ORDER 48 IN FORM 95 (HCR 2012)

-COURT MAY ORDER THE JUDGMENT DEBTOR TO ATTEND BEFORE REGISTRAR AND BE ORALLY EXAMINED ON MEANS OF SATISFYING THE JUDGEMENT OR ORDER

-JDS IS ANOTHER OPTION TO GO IN THE EVENT THE PERSON AGAINST WHOM THE ORDER WAS MADE FAILS TO ABIDE BY THE ORDER WHICH HAS BEEN GRANTED PREVIOUSLY BY THE COURT

-REGISTRAR SHALL TAKE DOWN STATEMENT MADE BY THE JUDGMENT DEBTOR AND ASK HIM TO SIGN AFTER READING IT TO HIM

THANK YOU

THE END. OPEN FOR Q&A.