Last updated: September 10, 2019
Topic: FamilyChildren
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Judicial separation is another alternative of divorce when marriage has been on the rocks. There may be circumstances such as uncertainty of whether the marriage is irreformable, or either party disagree that the marriage has been irreparably broken down, or when there exists a strong religious belief against divorce from either or both parties. This is why judicial separation comes in as an option. Unlike a decree of divorce, the marriage still subsist after a decree of judicial separation is obtained. It merely relieve the parties from their obligation of living together. Both parties become legally separated, but are not free to remarry until a divorce is finally obtained. Under judicial separation, the court will consider about which of the party remain in their matrimonial home, which spouse owns the child custody and support, the division of assets, and the financial relief entitled by the parties. If the separated parties later reconciled and wish to resume staying together, they can apply to the court to set aside the order of judicial separation. In Malaysia, for non-Muslims marriage, Law Reform (Marriage and Divorce) Act 1976 (herein after written as LRA) covers its main idea on Judicial Separation under Section 64, 65 and 66. Section 64(1) LRA states that a petition for judicial separation can be applied by either party on reasons similar to a divorce (with modifications) under Section 54 LRA : one spouse commited adultery and the other spouse finds intolerable to live with him/her; the behaviour of one spouse which the other spouse cannot reasonably be expected to live with; desertion on the other for continuously 2 years or more right before the petition is presented; both spouse have lived apart continuously for at least 2 years immediately before the petition. Section 64(2) LRA states that once the court grant a decree of judicial separation, the parties can live separately legally but they cannot remarry until they divorce. In Cheng Ee Mun v Look Chun Heng & Anor, Wee Chong Jin J said that “…neither party, while the marriage subsists, is free to contract another marriage with a third person. Any such union would therefore not result in a valid marriage and children of such a union would not be a legitimate child…” while Section 64(3) states that the court has power to rescind the decree if found that the judicial separation was “obtained in the absence of the applicant”. If the decree was petitioned on desertion, it must have a reasonable cause. However, the court only has the jurisdiction to give a decree of judicial separation if Section 48(2) LRA is satisfied : that the marriage is registered or deemed to be registered under LRA, is monogamous, and both parties reside in Malaysia at the time of commencement of the proceeding. Moving on, Section 65 LRA states that a divorce can still be petitioned after judicial separation.The decree of Judicial Separation will be treated as sufficient proof of the grounds which it was granted on, but not pronouncing a decree of divorce without evidence from the petitioner.In Lim Bee Cheng v. Christopher Lee Joo Peng, the parties were judicially separated and the petitioner later filed for divorce on the ground of adultery and was granted a decree absolute.  Section 76 LRA provides the court power when granting decree of judicial separation or divorce to order the division of assets of the parties during their marriage by either joint effort (Section 76(1) LRA) or sole effort of either party (Section 76(3) LRA). On the other hand, Section 77 (1)(b) LRA provides that the court has power to order a man to pay maintenance to his wife or former wife when granting or subsequent to the grant of a decree of divorce or judicial separation. In Tan Kok Sung v Yap Sew Moy, the 30 years married couple had lived luxuriously until they both alleged each other on adultery with third parties. The husband’s allegation on the wife is lack of evidence but the wife’s allegation on the husband is strongly supported by DNA of a boy born. The wife ought to have the same or similar standard of living during the marriage. The court allow the wife’s claim and order RM5,000 to be paid by the husband as maintenance. Furthermore, Section 88(1) provides that the court may order the custody of the child either to his or her father or mother at any time, where there are exceptions such as undesirable to entrust the child to either parent, of any other relative of the child or of any other association the objects of which include child welfare or to any other suitable person. In Soo Lina v Ngu Chu Chiong, the parties had been judicial separated and there was an order for maintenance, property division and child custody entered when the decree was made. The petitioner soon filed for divorce and applied for ancillary relief of maintenance for a larger amount. It was held that the consent order is a final order and could only be set aside if it was shown that it was obtained through misrepresentation or mistake or where there has been any material change in the circumstances (maintenance order-Section 83 LRA) Meanwhile, there is no statutory provision on the variation for a property adjustment order. Hence once the order is made, it is final under Section 76(1) LRA. In Jayakumari A/P Arul Pragasam v Suriya Narayanan, the petitioner wife left the matrimonial home as the respondent husband assaulted and threatened to kill her when she said she wanted a divorce. Her solicitor filed a petition for judicial separation. The court has jurisdiction to evict the respondent husband from the matrimonial home even though the trial is still pending while the petitioner wife has rights to stay in the matrimonial home as presumed by the law although it belongs to the respondent husband. It is necessary because the conduct of the respondent husband is so outrageous that it is impossible for the petitioner to live together with him. In U.S., family law is state law and they called judicial separation as legal separation or limited divorce. The parties need to meet the residency requirement for their respective state before filing for judicial separation. For instance, in New York, the residency requirement is 2 years if only 1 spouse resides there at the time of filing the legal separation, and 1 year if it falls under these 3 grounds: if the spouses were married in New York and either spouse is still a resident; they once resided in New York and either spouse is still a resident; the grounds for legal separation arise in New York. If both parties reside in New York at the time of filing, thus there will be no residency requirement, according to the Consolidated Laws of New York Annotated; Domestic Relations Law, Article 11, Sections 200, 230, and 231. In Latta v Latta, it states that under Florida law, residence and domicile are different and that residence is the key in relation to divorce and financial arrangements. In California, the court have jurisdiction over a marriage to grant a dissolution, annulment or legal separation if one or both parties is domiciled within the state of California. In Smith v Smith, it provides that domicile requires physical presence in the jurisdiction, the intent to remain in the jurisdiction indefinitely, has voting registration, a driver license and tax return filings. For legal separation proceedings, the courts decides on the separation maintenance (include alimony and child support)(but differs from that of divorce); child custody; child visitation; and property division. In Maryland, under Md. Code, Family Law § 7-102 (a) , the court may decree a limited divorce on 4 grounds : cruelty of treatment of the complaining party or of a minor child of the complaining party; excessively vicious conduct to the complaining party or to a minor child of the complaining party; desertion; or separation if the parties are living separate and apart without cohabitation. While in New York according to Section 200 Domestic Relations Law, the grounds for judicial separation include cruel and inhuman treatment that endangers the physical or mental health of the plaintiff that it is unsafe or improper for the plaintiff to cohabit with; abandonment; neglect or refusal to provide support, adultery, and confinement of the defendant in prison for 3 or more years after the marriage.On the other hand, Florida does not formally recognize legal separation, but their statutes permits them to sign separation agreements to separate without formally divorce, so that they can legally end their marriage without totally separation like an absolute divorce, and at the same time be able to retain benefits of their marriage. In Florida, either spouse can file for limited divorce without proving for it by choosing one of these 3 reasons: cruelty; desertion or voluntary separation.The Florida Courts may grant a limited divorce although the parties want an absolute one, and may decide on the period of such decree, however, they do not resolve disputes arising from the separation agreements. The main difference between Malaysia and U.S. jurisdiction on judicial separation is that in Malaysia, the law applies federally. All non-Muslims marriages in Malaysia is registered under LRA, in contrast, marriage in U.S is registered under respective state law. Some states in U.S. such as Florida and Texas does not have provisions on judicial separation thus it limits their domiciles on option in breakdown of marriages. The grounds for judicial separation (or legal separation in U.S.) in both of the countries are common for the commit of adultery and desertion, but U.S has wider interpretation on the grounds. There is a different view whereas Malaysia’s Section 54 on grounds on divorce (also applicable to Judicial Separation) lay out the provision in a very general way, thus it is up to the decision of court to vary the disputes arose. For example, under Section 54(1)(b) LRA, the behaviour which “the petitioner cannot reasonably be expected to live with the respondent” covers violence as in the case of Ash v Ash which the alcoholic and violent husband made the wife could not reasonably be expected to live with him, can be related to Maryland’s coverage on cruelty under Md. Code, Family Law § 7-102 (a).