Judicial Separation Or Divorce In Malaysia?
To answer the question posed above we must first understand what a Judicial Separation (“JS”) is. In simple terms, a JS is akin to a divorce but minus the actual confirmation of a divorce. What this essentially means is that the courts will acknowledge that the couple of a JS are no longer required to fulfill their marital obligations to one another and can now live fully separate lives from one another.
However, this pursuit of a new life away from their spouse under a JS does not permit them to remarry as their current marriage still subsist. If they wish to remarry, then a divorce will still be required in order to set aside the current marriage. All in all, a JS is not a divorce, what it does is that it allows the parties to discharge their marital obligations to one another whilst maintaining the sanctity of marriage. JS is also a viable option for individuals who hold certain personal and/or religious believes. It provides them with an avenue to exit an unfavorable situation without having to fully sacrifice their believes.
Similar to a divorce, to apply for a JS based on Section 64 (1) of the Law Reform (Marriage and Divorce) Act 1976, the applicants must prove that there was a breakdown of the marriage via one of the reasons set out in Section 54(1) (a) where the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent, (b) the respondent behaved in such a way that the continuous period cannot reasonably be expected to live with the respondent, (c) the respondent continuously deserted the petitioner for 2 years OR (d) the parties have continuously lived apart for 2 years.
One advantage of a JS is that it does not bar the parties from applying for a divorce later on as stated by Section 65 of the Law Reform (Marriage and Divorce) Act 1976. In other words, one may still apply to the court for a divorce even if the court has allowed for a judicial separation earlier. Essentially, parties may opt for JS as a “testing period” and see if the marriage can be salvaged.
Another advantage of getting a JS is that couple have access to the remedies of a divorce such as, guardianship, custody, care and control of the child and/or children, the division of any and all matrimonial assets, maintenance of the spouse as well as who gets to remain in the matrimonial home. Further, Section 66 of the Law Reform (Marriage and Divorce) Act 1976 states that if the wife who at the time of her death is judicially separated from her husband, her property shall in case she dies without a valid will, go as it would have gone if her husband had been then dead.
In addition to that, Section 66 (2) states that upon any such judicial separation, alimony has been decreed or ordered to be paid to the wife and the same is not duly paid by the husband he shall be liable for necessaries supplied for her use. Essentially, with this, both parties are able to truly lead separate lives as their assets and rights can be spelt out clearly by the courts. This will ensure that there is essentially a clean break between the couple, safe for the actual declaration that the marriage no longer exist.
The reality of things is that not every couple lives happily after the day of their marriage and in some cases the couple may come to realize very quickly after their marriage that it was a mistake and would like to undo it as soon as possible. JS provides them with such an option to do away with this “bad decision” without having to go through the hassle and stigma of a divorce.
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