Overview of Judicial Separation Under Law Reform (Marriage and Divorce) Act 1976 (Act 164)

Overview of Judicial Separation Under Law Reform (Marriage and Divorce) Act 1976 (Act 164)

 

Judicial Separation

Judicial separation (JS) is provided under section 64 of the LRA as follows:

“64. (1) A petition for judicial separation may be presented to the court by either party to a marriage on the ground and circumstances set out in section 54 and that section shall, with the necessary modifications, apply in relation to such a petition as they apply in relation to a petition for divorce.

(2)      Where a court grants a decree of judicial separation it shall no longer be obligatory for the petitioner to cohabit with the respondent.

(3)      The court may, on an application by petition of the spouse against whom a decree of judicial separation has been made and on being satisfied that the allegations in the petition are true, rescind the decree at any time on the ground that it was obtained in the absence of the applicant or, if desertion was the ground of the decree, that there was reasonable cause for the alleged desertion.”

The above provision clearly specifies that JS can be obtained on the same grounds as divorce as set out in Section 54 of the LRA.  Also, a decree of judicial separation granted by the court, confirms that the couple is no longer obliged to live together as a married couple.

The above provision on JS is part of LRA which was tabled and passed by the Parliament on 6 March 1976.  The same LRA was published in the Gazette and came into effect on 11 March 1976.  LRA made detailed provisions for marriage, dissolution of marriage including divorce and judicial separation, custody, maintenance, and division of matrimonial property.  LRA corresponds to the Matrimonial Causes Act 1973 of England whereby the questions of principles of law to be applied in granting relief, where Section 47 of LRA provides that the Malaysian Court shall decide as nearly as possible in conformity with the principles of the High Court of Justice in England.

JS serves a multifaceted purpose, addressing specific circumstances within the framework of family law. One primary objective is to afford couples a legal mechanism for a temporary separation, providing them with the opportunity to reside apart while maintaining the legal status of marriage.  This aims to allow parties the necessary time and space to deliberate on the state of their relationship and potentially facilitate reconciliation.  Furthermore, JS is recognized as a legal recourse in situations where parties, due to religious beliefs, encounter prohibitions against divorce.  In such instances, the option of judicial separation becomes an alternative avenue for formally acknowledging the breakdown of the marital union while accommodating religious constraints that may impede the pursuit of an absolute divorce.

The same position can be referred from common law whereby a person professing Roman Catholic religion opted for judicial separation as an alternative to divorce.  In the case of King v King,[1] the case was for the application of the wife for an order for maintenance.  The English Court of Appeal highlighted the fact that the wife, a Roman Catholic, petitioned for a judicial separation on the ground of the husband’s adultery. The petition was undefended, and a decree of judicial separation was pronounced on January 28, 1953.

It is also interesting to note in the case of Wilkinson v Wilkinson,[2] the facts show that the wife, being a Roman Catholic and had a religious objection to dissolution of marriage, opted to petition for judicial separation on grounds of her husband’s cruelty. The judicial separation was granted by the English Court of Appeal even though it was reversed later due to the husband’s absence in the proceeding.

 

Ancillary Relief

In the context of JS proceeding in Malaysia, it is noteworthy that Section 76(1) of the LRA empowers the Court to order the division of matrimonial assets when granting a decree of divorce or judicial separation. The relevant provision is quoted herewith-

76. (1) The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale.”

This statutory provision affirms the Court’s jurisdiction to decide on the fair allocation of assets acquired through the collaborative efforts of the parties throughout their marriage.  Consequently, the Court retains the prerogative, at its discretion, to decree either the division of said assets or their sale, with subsequent equitable apportionment of the proceeds among the parties engaged in the legal proceedings.

This is supported by the case of Chew Ling Hang v Aw Ngiong Hwa,[3] whereby the case was heard in the Court of Appeal of Malaysia which emphasised on the application of Section 76 (1) of the LRA whereby it is the opinion of the Court that ‘when’ in Section 76(1) means at the time the decree is being granted.  The Court further held that the residuary powers of the Court to extend or to abridge time is always there, but the words are clear and any order for ancillary relief must relate back to the granting of the decree because it is upon the decree that the ancillary relief is hinged.

A recent case which shows that ancillary relief is ordered in the same proceeding of judicial separation is CSM v TCC.[4]  The case was heard by the High Court Malaya in Kuala Lumpur whereby a petition for judicial separation was filed by the petitioner wife against the respondent husband.  The wife also sought for ancillary relief in terms of maintenance, arrears in spousal maintenance, payment of ang pow, monthly maintenance for the parties’ two children, and a portion of the couple’s matrimonial assets which amounted to more than a quarter billion ringgit.  Faizah Jamaludin J in this case recognized that the parties’ marriage had irretrievably broken down and granted the decree for judicial separation.  The Court further ordered for the husband to pay for maintenance and the arrears of maintenance to the wife, maintenance to the children but the claim for ang pow was dismissed.  On the division of matrimonial assets, the Court held that-

“Pursuant to s. 76(2) of the LRA, in deciding on the division of the matrimonial assets between the petitioner and the respondent, the court was required to ‘incline towards equality of division’ after taking into consideration the factors in s. 76(2).  The court took into account the respondent’s financial contribution towards the acquisition of the properties and the expenses for the benefit of the family, the petitioner’s contributions to the welfare of the family ‘by looking after the home for caring for the family’ and the duration of the marriage.  The court divided the matrimonial assets between petitioner and the respondent, not half but as close to half.  In doing so, this court did not divide each and every asset down the middle but instead strived towards equality of division of the couple’s whole basket of assets – the division of all the assets in the basket was at the ration of 44:56 for the petitioner and the respondent, respectively.”

In the case of Yap Soo Kean v Phang Chee Wai & Anor,[5] the petitioner wife filed a petition for judicial separation against the respondent husband, seeking a judicial separation, maintenance of herself, division of matrimonial home and assets and costs.  The respondent husband has no objection to granting an order for judicial separation and asked an order for a reasonable monthly maintenance sum to petitioner wife.  The Court in this case granted the judicial separation of the parties and the ancillary relief prayed by the wife among others (a) RM 10,000.00 monthly as her maintenance, (b) RM 4,000.00 per month as arrears of maintenance calculated from September 2019 and the husband is given 6 months to pay the outstanding sum, and (c) division of assets acquired during the marriage namely house, condo, service apartment, and companies’ shares.

Meanwhile, the procedural distinctions between Malaysia and Singapore in handling ancillary matters in divorce proceedings are noteworthy.  In Malaysia, the ancillary relief, including the division of matrimonial assets, can be addressed concurrently with the JS hearing, as stipulated under Section 76(1) above. This integrated approach allows for a more streamlined and potentially expedited resolution of the overall case.

On the other hand, in Singapore, the ancillary matters are not dealt with in the same divorce hearing.  Instead, they are addressed separately after the interim order for divorce is granted. This procedure of ancillary matters may lead to a more extended legal process compared to the concurrent approach in Malaysia. This is pursuant to section 99 of the Women’s Charter 1961 in Singapore which provides that the judgment of divorce must be heard first and subsequently followed by an ancillary matters hearing.

Legally speaking, Malaysia’s approach, which permits the concurrent hearing of divorce and ancillary relief, has the potential to expedite case resolution more efficiently than the process adopted in Singapore.

Effect of the Ancillary Relief

Section 65(1) of LRA provides-

65(1) A person shall not be prevented from presenting a petition for divorce, or the court from pronouncing a decree of divorce, by reason only that the petitioner has at any time been granted a judicial separation upon the same or substantially the same facts as those proved in support of the petition for divorce.”

The above section provides that a person is not barred from filing a divorce petition or the court from granting a divorce decree solely because the petitioner had previously obtained a judicial separation based on similar facts. In other words, having obtained a judicial separation does not prevent a subsequent divorce petition on the same grounds which the judicial separation was granted.

However, it is important to note that the ancillary relief order, once granted during the JS proceeding, remains valid and binding upon the parties even if the parties subsequently opt for divorce.  That is to say, the parties cannot apply for another ancillary relief order.

This legal stance finds support in several authoritative precedents.  In the case of Manokaram A/L Subramaniam v Ranjid Kaur A/P Nata Singh,[6] decided by the Federal Court of Malaysia on 4 September 2008, the judgment explains the interpretation of Section 76(1) of the Law Reform (Marriage and Divorce) Act (LRA).  The Court held that under Section 76(1) and (3) of the Act, the Court’s jurisdiction to order division of matrimonial assets is limited to the time when granting a decree of divorce or judicial separation and not at a later stage.

In Soo Lina v Ngu Chu Chiong (Chong Oi Khium Irene, Co-Respondent),[7] the case was heard in the High Court of Malaysia on 19 May 1992. The judge in this case emphasised that a consent order obtained from the JS proceedings shall be the final order. The Court further held that the petitioner shall have no right to pray for a separate ancillary relief in a subsequent divorce proceeding on the ground that there is no bar for the petitioner to file for divorce proceedings after the judicial separation order has been granted as per Section 65 of the LRA.

Conclusion

In conclusion, the provision for JS under Section 64 of the LRA offers couples in Malaysia a legal recourse for temporary separation under specific circumstances akin to those for divorce, as outlined in Section 54 of the LRA.  The law provides individuals with the option to live apart while maintaining the marital status, allowing for reflection and potential reconciliation, particularly beneficial for those facing religious constraints against divorce.

Moreover, JS proceedings in Malaysia incorporate ancillary relief, such as the division of matrimonial assets, concurrently with the main hearing, streamlining the process compared to jurisdictions like Singapore where ancillary matters are addressed separately. This integrated approach in Malaysia facilitates more efficient case resolution.

Importantly, the effect of ancillary relief ordered during JS proceedings is significant.  While obtaining a divorce subsequent to a judicial separation based on similar grounds is permissible under Section 65(1) of the LRA, the ancillary relief order remains binding, precluding parties from seeking further relief in subsequent divorce proceedings.

Therefore, the ancillary relief order obtained by parties together with the JS decree shall remain valid and binding upon the parties and the parties have no right to apply for a separate ancillary relief order if they opt for divorce later on.

Prepared by:

Nur Syaheerah Razailani

Messrs Misyail Othman & Co

 

[1] [1954] P 55 CA

[2] [1962] 1 All ER 922

[3] [1997] 3 MLJ  107

[4] [2023] 3 CLJ 403

[5] [2022] 1 LNS 2736

[6] [2009] 1 MLJ 21

[7] [1992] 2 MLJ 870

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