Judicial separation: I sometimes call it the 99% divorce. For me, judicial separation is almost like divorce. Almost, but not quite. Almost, because 99% of the things that go into a divorce, also go into a judicial separation. But at the end of the day, there’s one difference: In name, the couple would still be husband and wife.
So, it’s time to clarify. Why would people not want a divorce, yet go through all the hassles of a divorce?
Understanding judicial separation
For a start, judicial separation could be seen as a legal way for couples to live apart. When one party lives apart from the other, the other party can claim desertion. Put it another way, couples should live together, and moving out can be desertion. After prolonged separation, the other party can seek divorce based on desertion. The party that moved out is at fault. The party that moved out has “abandoned” the party that did not move out.
So, judicial separation is a way to avoid your spouse claiming that you abandoned him or her. (Abandonment is a grounds for divorce.)
Judicial separation removes the need for cohabitation. (See section 64(2) of the Law Reform (Marriage and Divorce) Act 1976 )
Division of Assets during Judicial Separation
When a court deals with judicial separation, it can also make an order for division of assets. (See section 76, LRA 1976).
We deal with division of assets in a separate article.
Suffice to say, the court has power to order the sale of property, or to divide it among the parties. If there is more than one property, the court can order property A to go to A, and property B to go to B.
Getting around the 2 year minimum
Divorce proceedings in Malaysia are subject to a minimum of 2 years from the date of the marriage. We suppose that there’s a rationale for that. Perhaps law makers want new couples to try salvaging their marriage. Perhaps law makers hope couples can solve their marital problems during that time.
During the 2 year period, it would be painful for couples to live together. In such cases, judicial separation would be an ideal solution. Couples can live apart without being at fault when the divorce is filed.
Custody of children
We have dealt with custody of children in another article. Courts can make orders for guardianship, custody, care and control during judicial separation.
For example, in Tee Bee Chin (P) v Goh Swee Por (L)  8 MLJ 590 the wife had filed for judicial separation. At the same time, she sought sole guardianship, custody, care and control of her child. While waiting for the outcome, the wife applied for ancillary relief. The court granted her application.
Effect on Division of Property After Death
Here, the law becomes a bit murky.
If there is judicial separation, and the wife dies without a will, her husband does not inherit from her. (See section 66(1) LRA 1976)
But if the husband dies without a will, it is not clear whether the wife will inherit from the husband. There is no similar provision in the LRA 1976.
Worse yet, if both die with a will, it is not clear whether the parties will inherit from one another. (Again, no clear provision in the LRA 1976)
Bear in mind, after judicial separation, the parties are still husband and wife.
The Wills Act says marriage revokes a will. (See section 12, Wills Act 1959.) But it does not say anything about judicial separation.
Neither does the Distribution Act 1958 say anything about judicial separation.
Deed of Separation
In some cases, the parties did not apply for judicial separation. Instead, they entered into a deed of separation.
A deed is different from a contract. In a deed, the parties need to perform their obligations even if there is no consideration.
An order for judicial separation is helpful as proof at a divorce at a later date. If you prove adultery during judicial separation, your later divorce will proceed as though adultery has been proved. (See section 65(2), LRA 1976)
A deed of separation isn’t the same as a judicial separation. But some cases mention the deed of separation. The Federal Court considered a deed of separation during the case of Teh Eng Kim v Yew Peng Siong  1 MLJ 234. The Federal Court considered a deed of separation in Mahabir Prasad v Mahabir Prasad  2 MLJ 326.
In the two FC cases, the deed of separation may have been a temporary arrangement. It was an arrangement pending the divorce proper. So can a party veer away from its terms, come the divorce?
The LRA 1976 is a social legislation, for which a liberal interpretation is more apt than a strict one. (See Diana Clarice Chan Chiing Hwa v Tiong Chiong Hoo  2 MLJ 97;  1 CLJ 721 (CA) )
A court, in a divorce case, can consider the deed of separation. It is evidence of some sort, of arrangements of some sort, between the parties. (See section 56, LRA 1976.)
This article is provided to you as general information. It is not intended to be legal advice. If you need help, please consult with a lawyer.