** Remarks: The following is for sharing purposes only and does not constitute professional legal advice
What is Divorce under LRA and Judicial Separation?
- Divorce: A marriage is dissolved under the LRA when a decree of divorce is granted by the court. The decree takes effect from the date it is made, and the couple is no longer legally married.
- Judicial separation: A legal separation between two married people, which is granted by the court on the application of either party.
What are the jurisdictional requirements for divorce and judicial separation in Malaysia?
Both Divorce under LRA and Judicial Separation have certain requirements that must be met for the court to have jurisdiction over the petitions. Both processes require the marriage to be registered under the LRA and must involve a monogamous marriage contracted under specific laws.
However, there is a difference in the domicile requirement for Divorce under LRA and the residence requirement for Judicial Separation:
- Divorce under LRA: The court must satisfy the conditions outlined in section 48(1)(C). Both parties to the marriage must have domicile in Malaysia at the time the petition is presented.
- Judicial Separation: The court needs to fulfil the conditions specified in section 48(2)(C). Both parties to the marriage must reside in Malaysia at the time the action is commenced.
Who can petition for a divorce or judicial separation in Malaysia?
Under the Law Reform (Marriage and Divorce) Act 1976 (LRA), either party can file a petition based on the grounds of irretrievable breakdown of the marriage. In the case of mutual consent, both parties can jointly initiate the divorce process. However, if one party decides to convert to Islam, the non-convert party holds the right to petition for divorce.
For judicial separation, either party to the marriage can petition.
What are the restrictions on divorce and judicial separation in Malaysia?
Divorce is restricted for the first two years of marriage, except in cases of conversion to Islam or exceptional circumstances or hardship suffered by the petitioner.
In contrast, there are no restrictions on the time period for filing a petition for judicial separation under the LRA. This means that a petition for judicial separation can be filed at any time during the existence of a valid marriage.
What are the grounds for petition restrictions on divorce and judicial separation in Malaysia?
In Malaysia, both divorce and judicial separation proceedings come with specific grounds for petition, providing legal guidelines to address various marital issues.
For a divorce petition, the grounds are as follows:
- Conversion to Islam: If the spouse converts to Islam, the non-Muslim spouse can petition for divorce if the conversion was genuine and the non-Muslim spouse will suffer grave financial or other hardship.
- Mutual consent: If the parties have lived apart for at least 2 years, they can petition for divorce by mutual consent.
- Breakdown of marriage: The breakdown of a marriage can be caused by adultery, desertion, cruelty, or unreasonable behaviour. The court will consider all the evidence before making a decision.
Judicial separation can be granted on any of the grounds stated in Section 54 of the Law Reform (Marriage and Divorce) Act 1976, including adultery, unreasonable behaviour, desertion, and living apart for two years.
What are the consequences of divorce and judicial separation in Malaysia?
Understanding the implications of divorce and judicial separation is crucial when making decisions that could significantly impact your life and the lives of your loved ones. Here’s what you need to know:
Consequences of Divorce:
- A decree nisi will be granted and made absolute after 3 months.
- Either party can remarry after the grant of a decree absolute.
- The court can order the division of assets acquired during the marriage.
- The court can order a man to pay maintenance to his former wife.
- The court can order the custody of a child to either parent, another relative, or a suitable person.
Consequences of Judicial Separation:
- Separation without terminating the marriage officially.
- Cohabitation with the respondent is no longer required after the court grants the decree.
- The court may cancel the decree if the respondent proves it was obtained in their absence or for a reasonable desertion cause.
- A person can still file for divorce after getting a judicial separation.
- The court may consider the previous judicial separation as evidence in divorce petitions.
- If a wife dies intestate while judicially separated, her property is distributed as if her husband were already deceased.
- If alimony is decreed during judicial separation and remains unpaid, the husband becomes liable for providing the wife’s necessities.
In conclusion, it is crucial to comprehend the distinctions between divorce and judicial separation in Malaysia, especially when dealing with marital challenges. Seeking legal advice and understanding the implications of each process are essential for making informed decisions. Whether you are contemplating divorce or judicial separation, our team is here to assist you.
Take the first step: Fill our free consultation form below.