Spouses in a marriage that has broken down may consider judicial separation as an alternative to a divorce. Judicial separation is a decree which stipulates that the husband and wife are no longer required to fulfil their marital obligations and are permitted to live apart indefinitely. Divorce is not always the best option, and the preference for judicial separation may be due to various personal reasons such as the welfare of the children, conflicting religious beliefs or social perceptions.
Who can apply for a decree of judicial separation?
Spouses whose marriages have been registered under the provisions of the Law Reform (Marriage and Divorce) Act 1976 may apply for a decree of judicial separation. Judicial separation and the Law Reform (Marriage and Divorce) Act 1976 do not apply to Muslims, as separate laws govern Islamic marriages.
When can couples apply for a decree of judicial separation?
Unlike a divorce petition which can only be made 2 years after the date of marriage, couples can apply for a decree of judicial separation at any time, provided that they fulfil the conditions listed in Section 48(2) of the Law Reform (Marriage and Divorce) Act 1976, summarised as follows:
- The marriage is registered or deemed to be registered under the Law Reform (Marriage and Divorce) Act 1976;
- The marriage was monogamous; and
- Both parties to the marriage reside in Malaysia at the time of the commencement of proceedings.
What are the grounds for a decree of judicial separation?
The grounds for a decree of judicial separation is similar to a divorce petition. The court may take into consideration one or more of the following grounds provided under Section 54 of the Law Reform (Marriage and Divorce) Act 1976:
- The petitioning spouse can no longer tolerate living with a spouse who has committed adultery. However, there is no necessity to name the alleged adulterer or adulteress as a party in a petition for judicial separation. This is because the Court does not have the power to order the alleged adulterer or adulteress to pay for damages for the adultery (AIS v RIS & Anor [2020] MLJU 241).
- A spouse has behaved in such a way that the petitioning spouse cannot be expected to continue living with him or her.
- The petitioning spouse was deserted for a continuous period of at least 2 years, immediately preceding the date of the petition.
- The parties to the marriage have lived apart for a continuous period of at least 2 years preceding the date of the petition.What interim relief can parties seek pending judicial separation?
Parties may file an application for ancillary relief pending the disposal of the petition for judicial separation. An application for ancillary relief generally includes an order for an interim arrangement with regards to the guardianship, custody, care and control of a child (Ang Sae Ming v Chow Foong Yien [2019] 8 MLJ 36).
Under Section 102 of the Law Reform (Marriage and Divorce) Act 1976, the Court has the power to prevent the dissipation and disposition of property pending an ongoing judicial separation proceeding (Sheng Lien @ Sheng Len Yee v Tan Teng Heng & Anor [2010] MLJU 2216).
Furthermore, Section 103 of the Law Reform (Marriage and Divorce) Act 1976 provides the Court with the power to grant injunctive relief against molestation pending the final determination of the petition for judicial separation (Tee Bee Chin (P) v Goh Swee Por [2018] 8 MLJ 590).
What provisions can be granted via a decree of judicial separation?
A decree of judicial separation will include provisions for, amongst others:
- Guardianship, custody, care and control of children (if any);
- Division of matrimonial assets;
- Maintenance of spouse; and
- Which spouse remains in the matrimonial home.
Effects of a decree of judicial separation
As stated above, one of the effects of judicial separation is that it allows parties to the marriage the right to live separately. However, they are not allowed to marry anyone else until and unless they are divorced. As such, if one spouse wishes to marry another person, a divorce petition must first be filed. A decree of judicial separation will not create a bar to a divorce petition (Section 65 of the Law Reform (Marriage and Divorce) Act 1976). If the judicially separated parties wish to reconcile, an application can be made to set aside the decree of judicial separation.
A petition for judicial separation cannot be used as a shield against a divorce petition. In the case of Satheesan A/L TA Menon v Ayginus Shirley S/P John [2017] 7 MLJ 257, the husband filed a petition for divorce after living apart from his wife for 10 years. However, due to the wife's religious belief, the wife filed a cross-petition for judicial separation instead. After considering the evidence, the Court was of the opinion that the marriage had irretrievably broken down, and parties could no longer be expected to live with one another. Consequently, the Court held that the marriage ought to be dissolved irrespective of the wife's religious belief. Judicial separation should not be used as a barrier for the other spouse to move on in life. While there is a need to respect the sanctity of marriage, it would be contrary to public policy to insist on the subsistence of a marriage which has ceased to exist, both emotionally and physically.
Under Section 66 of the Law Reform (Marriage and Divorce) Act 1976, a husband will not inherit anything from his wife in the event his wife dies intestate (without a will) while they were judicially separated. However, there are no provisions to say that a wife will not inherit anything from her husband if he dies intestate while they are judicially separated.
Conclusion
Judicial separation is a good alternative if a divorce is not viable. Once judicially separated, the couple will no longer be required to fulfil their marital obligations and are permitted to live apart indefinitely.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
