Judicial Separation In Malaysia: An "Almost" Divorce

• Published date: 13 January 2021
• Subject Matter: Family and Matrimonial, Divorce
• Law Firm: MahWengKwai & Associates
• Author: Sue Ann Wong and Ryan Cheong

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:

1. The marriage is registered or deemed to be registered under the Law Reform (Marriage and Divorce) Act 1976;
2. The marriage was monogamous; and
3. 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:

1. 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).
2. A spouse has behaved in such a way that the petitioning spouse cannot be expected to continue living with him or her.
3. The petitioning spouse was deserted for a continuous period of at least 2 years, immediately preceding the date of the petition.
4. The parties to the marriage have lived apart for a continuous period of at least 2 years preceding the date of the petition.What...