A. INTRODUCTION
1. The legal framework governing custody and guardianship in Malaysia and Singapore shares substantial similarities due to the historical development of both jurisdictions. Both countries enact statutes that prioritise the welfare of the child as the paramount consideration. However, while the legislative wording in both Malaysia and Singapore appears to contemplate custody being placed with “his or her father or his or her mother,” Singapore has significantly evolved in its interpretation, embracing joint custody as a norm rather than an exception. Malaysia, though traditionally more conservative in interpretation, is now gradually aligning itself with this modern, child‑centred approach.
B. MALAYSIA’S STATUTORY FRAMEWORK UNDER THE LRA 1976
2. Section 88(1) of the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) provides that the Court may place a child in the custody of “his or her father or his or her mother,” or any other suitable person in exceptional circumstances. At first glance, the use of the disjunctive phrasing suggests that custody is to be vested in one parent at a time, which historically resulted in sole custody orders being the norm.
3. Despite the seemingly sole‑oriented wording, the Malaysian judiciary has progressively adopted a more flexible and child‑focused interpretation. This evolution is supported by Section 5 of the Guardianship of Infants Act 1961 (“GIA 1961”), which expressly provides that mothers and fathers share equal parental rights and authority.
4. Malaysian courts have increasingly recognised the importance of shared decision‑making. This recognition is evident in cases such as Mahabir Prasad v Pushpa Mahabir Prasad [1981] CLJ Rep 65, where the Federal Court emphasised that the welfare of the child is the paramount consideration.
5. The Malaysian approach has since expanded, with courts acknowledging that joint custody promotes cooperation between parents and ensures both remain involved in significant decisions affecting the child.
C. SINGAPORE’S PARALLEL LEGISLATIVE STRUCTURE
6. Singapore’s Women’s Charter 1961, specifically Sections 125 and 126, mirrors the structure and intent of Sections 88 and 89 of Malaysia’s LRA 1976. Like Malaysia, the wording appears to place custody with one parent, yet Singaporean jurisprudence has taken a distinct trajectory.
7. Beginning in the early 2000s, Singaporean courts began to favour joint custody orders even in cases involving parental conflict.
8. In CX v CY (minor: custody and access) [2005] SGCA 37, the Singapore Court of Appeal articulated that joint custody symbolically reinforces that both parents have an equal say in long‑term decisions regarding the child.
9. This interpretative shift solidified further in VJM v VJL [2021] SGHCF 16 and ZO v ZP and another appeal [2011] SGCA 25, where the courts held that joint parenting should be the default position as long as it remains consistent with the child’s best interests.
10. Singaporean jurisprudence has thus transformed its statutory language into a modern, cooperative parenting model, without legislative amendment, solely through judicial development.
D. MALAYSIA’S GROWING ALIGNMENT WITH THE SINGAPOREAN APPROACH
11. Although the Malaysian legislation remains textually similar to Singapore’s, Malaysia’s courts have only recently embraced the concept of joint custody as a preferred model.
12. In Tan Sherry (P) v Soo Sheng Fatt (L) [2016] 1 LNS 1586, the Malaysian High Court expressly referenced Singaporean jurisprudence and adopted the reasoning that joint custody protects a child from the fear of “losing a parent.”
13. In Wong Chong Kiew v Lee Hock Seng [2019] 1 LNS 915, the Malaysian court noted that excluding a father from major decision‑making would not be in the child’s best interest, thereby granting joint custody.
14. More recent cases such as PR Sooriaprakass Ramachandran v Sailaja A Jayamani [2022] 1 LNS 1370 and Cecilia Lau Heng Siong (f) v Donald Ting Chung Ling [2019] 1 LNS 1952 demonstrate that the Malaysian judiciary is evolving, acknowledging that joint custody and shared parental responsibility best serve the welfare of children.
15. This evolution aligns Malaysia with the global trend recognising that children benefit most when both parents retain meaningful involvement in their upbringing.
E. WHY JOINT CUSTODY IS BECOMING THE PREFERRED MODEL
16. Joint custody reflects modern psychological and sociological research showing that children thrive when both parents remain active decision‑makers in their lives.
17. Shared responsibility fosters stability, reduces the emotional burden on children, and minimises the risk of parental alienation.
18. The presumption in favour of joint decision‑making encourages cooperation, reduces power imbalances, and aligns with the principle that the welfare of the child is paramount.
19. As Malaysia continues to adopt principles reflected in Singaporean jurisprudence, joint custody is poised to become the default interpretation within Malaysian courts, despite the inherently sole‑based wording in Section 88.
F. CONCLUSION
20. Although the statutory language in both Malaysia and Singapore appears to favour sole custody, judicial interpretation has transformed the landscape. Singapore led the shift toward joint custody more than a decade ago, recognising the profound benefits of shared parenting. Malaysia, while initially adhering to a more traditional reading of Section 88, is now demonstrably evolving. Through the growing number of judgments endorsing joint custody and shared parental responsibility, the Malaysian judiciary is progressively reshaping family law to reflect modern realities, research‑based insights, and the paramount importance of a child's welfare.
21. As this judicial shift continues, joint custody may soon become the prevailing norm in Malaysia, ensuring that both parents remain equal partners in the upbringing of their children.
This article is prepared by Vhimall Murugesan