Legal Separation in Malaysia
As mentioned above, legal separation has the effect, inter alia, of giving spouses the right to live separately. However, they are not allowed to marry anyone until they are divorced. Therefore, if a spouse wants to marry another person, an application for divorce must first be filed. An order for legal separation does not preclude an application for divorce (section 65 of the Law Reform (Marriage and Divorce) Act 1976). If the parties separated by court wish to be approached, an application for annulment of the decision on legal separation may be lodged. Spouses in a failed marriage may consider legal separation as an alternative to divorce. Legal separation is a decree that stipulates that husband and wife are no longer obliged to fulfill their marital obligations and that they can live apart indefinitely. Divorce is not always the best option, and the preference for legal separation may be due to various personal reasons, such as the well-being of children, conflicting religious beliefs, or social perceptions. In addition, section 103 of the Law Reform (Marriage and Divorce) Act 1976 gives the court the power to grant an injunction against harassment pending the final decision on the application for legal separation (Tee Bee Chin (P) v Goh Swee Por [2018] 8 MLJ 590).
During the 2-year period, it would be painful for couples to live together. In such cases, legal separation would be an ideal solution. Couples can live apart without being guilty at the time of divorce. Legal separation is a good alternative if divorce is not possible. After the judicial separation, the couple no longer has to fulfill their marital obligations and can live apart indefinitely. A separation certificate is not the same as a legal separation. But some cases mention the certificate of separation. The Federal Supreme Court considered a certificate of separation in Teh Eng Kim v. Yew Peng Siong [1977] 1 MLJ 234.
The Federal Supreme Court considered a notice of separation in Mahabir Prasad v. Mahabir Prasad [1981] 2 MLJ 326. The law then provides that, when issuing a judgment of divorce or legal separation, the court has the power to order the division of property acquired during the marriage between the parties by the sole effort of one of the parties to the marriage or the sale of such property and the division of the proceeds of the sale between the parties. In exercising this power, the court shall take into account “(a) the extent of the contributions of the other party who did not acquire the property for the well-being of the family by caring for the home or family; [and] (b) the possible needs of minor children born out of wedlock. The Act provides that “subject to these considerations, the court may divide the property or proceeds of sale in such proportion as it considers appropriate; But in all cases, the person at whose expense the assets were acquired receives a higher share. If the court makes a decision on legal separation, the parties are not divorced. However, the parties no longer have to live together. The parties can also apply for divorce after a separation order has been issued.
We dealt with child custody in another article. The courts may order guardianship, custody, care and control during legal separation. Legal separation: I sometimes call it 99% divorce. For me, legal separation is almost like divorce. Almost, but not quite. Almost, because 99% of things that go into a divorce also go into a legal separation. But at the end of the day, there is a difference: in name, the couple would still be husband and wife. In both FC cases, the separation certificate may have been a temporary agreement. It was an agreement until the actual divorce.
So, can a party deviate from its conditions when the divorce is pronounced? First, legal separation could be seen as a legal way for couples to live apart. If one party lives separately from the other, the other party may claim desertion. In other words, couples should live together, and moving can be desertion. After a long period of separation, the other party may file for divorce on the grounds of desertion. The party that moved is to blame. The party that moved “left” the party that did not move. The legal separation decision contains, inter alia, provisions concerning: The parties may apply for legal separation if they do not wish to apply for divorce for personal reasons. Legal separation is therefore a way to prevent your spouse from claiming that you have left him.
(Abandonment is grounds for divorce.) As long as your marriage is recognized by Malaysian law. You can apply for legal separation at any time, even if your marriage has not yet reached 2 years. Note: This article does not constitute legal advice for any particular case. The facts and circumstances of each individual case will be different and will therefore require specific legal advice. Do not hesitate to contact us for free legal advice. Spouses whose marriage has been registered in accordance with the provisions of the Law Reform (Marriage and Divorce) Act 1976 may apply for a decision on legal separation. Legal separation and the 1976 Reform (Marriage and Divorce) Act do not apply to Muslims, as Islamic marriages are regulated separately. The grounds for a legal separation decision are similar to those for a divorce application. The court may consider one or more of the following grounds under section 54 of the Law Reform (Marriage and Divorce) Act 1976: Note that after legal separation, the parties are always husband and wife.
