Separated parents in Malaysia can keep their own dated record of care, visits and child expenses, in a notebook or an app; we found no official form for one. The terms depend on the court: non-Muslim parents use custody (penjagaan), care and control, access and maintenance (nafkah) in the civil High Court, and Muslim parents use hadhanah and nafkah anak in the Syariah Court of their state.
The terms to know
- Custody (penjagaan)
- The civil term. Under Act 164, a custody order generally entitles the person given custody to decide questions about the child's upbringing and education, subject to any conditions. The Government portal lists full custody, joint custody and access rights.
- Care and control (pemeliharaan dan pengawalan)
- Act 164 uses this separately from custody: an order can place a child temporarily in the care and control of someone other than the person given custody, and maintenance can be paid to the person with custody or care and control.
- Access (hak untuk berjumpa anak)
- A custody order can give the other parent the right of access to the child at reasonable times, or provide for the child to visit that parent.
- Maintenance (nafkah)
- Under Act 164 it is a parent's duty to maintain or contribute to the maintenance of their children, and the court can order a father or a mother to pay.
- Hadhanah
- Custody under Islamic family law. In the Federal Territories, Act 303 treats the mother as best entitled to custody of infant children, subject to conditions. Her right generally ends when a boy turns seven and a girl turns nine, and the Syariah Court can extend it to nine and eleven. In deciding custody, the child's welfare is the paramount consideration.
- Nafkah anak
- Child maintenance claimed in the Syariah Court.
Where cases are heard
Family law in Malaysia runs on two tracks. The civil law is the Law Reform (Marriage and Divorce) Act 1976 (Act 164). It does not apply to a Muslim or to anyone married under Muslim law, and a divorce petition under it is filed at the High Court. It also generally does not apply to natives of Sabah or Sarawak or aborigines of Peninsular Malaysia whose marriage is governed by customary law, with exceptions.
In the civil court, the welfare of the child is the paramount consideration. The court also looks at the wishes of the parents and of a child old enough to give an independent opinion. There is a rebuttable presumption that a child under seven is better with the mother, and each child's welfare is considered separately (section 88). The court takes advice from a person trained or experienced in child welfare where practicable, though it need not follow it (section 100).
Islamic personal and family law is on the State List of the Federal Constitution, apart from the Federal Territories, and Syariah courts have jurisdiction only over persons professing Islam. A Muslim parent therefore goes to the Syariah Court under the Islamic family law of their state. Act 303 is the Federal Territories version.
Where one parent converts to Islam, the two tracks meet. Since the 2017 amendments (Act A1546), section 51 of Act 164 lets either spouse petition for divorce, or both together under section 52, and the civil court can make orders on the support, care and custody of the children. These cases are complex, so get legal advice before filing in either court.
Mediation and help before court
In the civil track, most divorce petitions must first go to a conciliatory body, such as a marriage tribunal, under section 106 of Act 164. There are exceptions, for example where the other spouse lives abroad or cannot be found. A lawyer cannot act for you before the body. If it cannot resolve the matter it issues a certificate, and it may add recommendations on custody and maintenance.
The courts' Mediation Division oversees 18 court-annexed mediation centres. The page we read does not say which family cases they take, so ask your lawyer.
In the Syariah track, sulh is a mediated settlement. In Perlis, for example, hadhanah and nafkah anak cases are among those referred to the Majlis Sulh when a case is registered, and a settlement must be recorded by the court before it can be enforced.
A Bahagian Sokongan Keluarga helps enforce Syariah Court maintenance orders. In Johor the service is free, and registering needs a Syariah Court order and arrears of three months or more. Rules can differ between states.
Keeping your own record
Your record is for you first, whether or not you ever go to court. Note the date and time, who was there and what happened: visits, changes to the arrangement, school and medical matters, and each expense with its receipt. Stick to what you saw and heard, and note which court made any order you are following.
In the civil track, a custody order can carry conditions on where the child lives, education, religion and travel outside Malaysia. The court can vary an order where there has been a material change in circumstances (section 96), so a dated note of what changed can help you and your lawyer.
For maintenance in either track, keep the date, amount and method of each payment. A clear month-by-month record makes it easier to show what is owed, including where a state service looks at how many months are in arrears.
No app decides how much weight a court gives a record. As a general guide, it helps to write things down close to when they happened, to keep the whole picture and not only the difficult days, and to keep anything independent that supports it. If you are thinking of recording calls or conversations, get local legal advice first.
Step by step: keeping a journal you will actually maintain | tracking shared expenses
What has changed recently
The official reprints we could open are dated 2006 (Act 164 in English, and Act 303) and 2015 (Act 164 in Malay). Later amendments may exist, so ask a lawyer to confirm the current wording before relying on a section number or an age limit.
Each state has its own Islamic family law, so details can differ from the Federal Territories Act quoted here.
Official resources
- Law Reform (Marriage and Divorce) Act 1976 (PDF), Attorney General's Chambers
- Islamic Family Law (Federal Territories) Act 1984 (PDF), Attorney General's Chambers
- Divorce for non-Muslim couples, Malaysia Government portal
- Mediation Division, Office of the Chief Registrar, Federal Court
- Majlis Sulh, Perlis Syariah Judiciary Department
- Bahagian Sokongan Keluarga, Johor Syariah Judiciary Department
Frequently asked questions
Which court decides custody in Malaysia?
It depends on the parents. For a civil marriage of non-Muslims, custody comes under Act 164 and a divorce petition is filed at the High Court. For Muslim parents, hadhanah is decided by the Syariah Court under the law of their state.
Can a Syariah Court decide custody for a non-Muslim parent?
The Federal Constitution's State List gives Syariah courts jurisdiction only over persons professing Islam. Where one parent has converted, the position is more complex, so get legal advice before filing anything.
Does a child under seven always stay with the mother?
No. Under Act 164 there is a presumption that a child under seven is better with the mother, but it can be rebutted, and the child's welfare is the paramount consideration. The Syariah rules are different and depend on the state.
What is sulh?
Sulh is a mediated settlement in the Syariah courts, led by a neutral third party. In Perlis, hadhanah and child maintenance cases are among those referred to it, and the court must record a settlement before it can be enforced.
Does my own record need the other parent's agreement?
We found nothing in the official sources above that asks for the other parent's agreement to your own notes. Oya Shield works with one parent: no shared account and no invitation. How a record can be used in a case is a question for your lawyer.