Legally Married but Judicially Separated

Judicial separation offers a legal avenue for married couples in Malaysia to live separately without terminating their marriage through divorce.  This option can be particularly appealing for those who, for various reasons — religious, cultural, or personal — are not ready to end their marriage.  It must be emphasised that simply moving out of the matrimonial home and living away from one’s spouse does not amount to being judicially separated.
 
This article aims to explore the considerations and responsibilities of legal practitioners when advising clients on petitioning for judicial separation under the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). 
 
Key Considerations for Lawyers
 
1.     Understand the Client’s Intention and Objectives
 
It is important to first understand a client’s reason(s) for seeking judicial separation rather than divorce.  This understanding will shape the advice and strategy throughout the process.  Clients may choose judicial separation due to religious beliefs, a desire for reconciliation in the future, or personal or family considerations.  Lawyers must ensure that their clients are fully informed about the implications of judicial separation and how it aligns with their long-term objectives. 
 
2.     Petition for Judicial Separation
 
Unlike a divorce petition, there is no restriction to petition for judicial separation before the expiration of two years of marriage[1] or the requirement of reference to a conciliatory body before the petition[2].  That said, lawyers must ensure that the conditions under section 48(2) of the LRA are fulfilled before a petition for judicial separation may be filed.  
 
The conditions are:
 
(a) The marriage is registered or deemed to be registered under the LRA[3];
(b) The marriage is monogamous[4]; and
(c) Both parties to the marriage reside in Malaysia at the commencement of the proceedings[5].  
 
Pursuant to section 64 of the LRA, the grounds to petition for judicial separation are similar to those provided for divorce under section 54 of the LRA such as adultery, unreasonable behaviour, desertion, and/or two years’ separation preceding the date of the petition.  Therefore, a petition for judicial separation should include the reason(s) causing or leading to the breakdown of the marriage.  
 
3.     Explain the Legal Implications
 
Judicial separation impacts various aspects of a marriage, and lawyers must clearly explain these implications to their clients.  
 
Some key areas include:

• Marital Status: Judicial separation does not dissolve the marriage.  The couple remains legally married, so they are not allowed to remarry until and unless they are divorced.  A decree of judicial separation does not prevent one from presenting a divorce petition[6].  
• Cohabitation: Where a decree of judicial separation has been granted, the couple is no longer required to cohabit with each other[7]. 
• Inheritance Rights: A husband will not inherit anything from his wife in the event she dies intestate while they are judicially separated[8].  However, there is no provision to state that a wife will not inherit anything from her husband if he dies intestate while they are judicially separated. 

In short, clients must be fully informed about the manner in which their legal rights and obligations will change after judicial separation, particularly in comparison to divorce. 
 
4.     Reliefs Available
 
When presenting a petition for judicial separation, a petitioner can seek various reliefs similar to those in a divorce petition.  As lawyers, we should carefully assess a client’s situation to determine the appropriate reliefs to seek and prepare the necessary evidence in support of the claim(s).  
 

• Division of Matrimonial Assets:  The Court, when granting a decree of judicial separation, has the power to order the division of any assets acquired by the couple during the marriage or the sale of any such assets and the division of the proceeds of sale between the parties[9].  
• Maintenance of Spouse: Payment of maintenance to the spouse may be ordered by the Court when granting a judicial separation[10].  
• Custody, Care and Control of Child: Section 88 of the LRA provides that the Court may “at any time” order to place a child in the custody of his or her father or mother.  The phrase “at any time” appears to include situations where a judicial separation has been filed, and not only where a divorce proceeding has been commenced.  
• Injunction against Disposition of Property: Section 102 of the LRA empowers the Court to set aside or prevent dispositions of property pending a judicial separation proceeding[11].  
• Injunction against Molestation: The Court is empowered under section 103 of the LRA to order any person to refrain from forcing his or her society on his or her spouse and from other acts of molestation[12].  
• Damages for Adultery: A claim for damages is also allowed in a petition for judicial separation on charges of adultery but not if the co-adulterer / adulteress is a Muslim[13].   

 
Conclusion
 
Whilst judicial separation is less common than divorce, it still requires careful legal management to navigate its complexities and long-term implications.  Providing informed, ethical, and client-focused advice is essential for mitigating risks and ensuring successful outcomes in judicial separation cases.  By implementing robust risk management strategies, lawyers can protect their clients’ interests and safeguard their professional practice.