When a marriage is no longer working, non-Muslim married couples in Malaysia have several legal options to end their relationship. Couples may consider divorce, which effectively ends the marriage, or to be separated through a process known as judicial separation, in which case the marriage still subsists but the couple lives apart upon the terms of the separation ordered by the courts. This article briefly explores the differences between divorce in general and judicial separation in Malaysia.
Divorce
Divorce is a legal process that results in the complete dissolution of a marriage. There are 2 types of divorce proceedings: single petition divorce and joint petition divorce. While both types of divorce result in the dissolution of the marriage, there are significant differences between the two.
Single Petition Divorce
A single petition divorce, also known as unilateral divorce, is a legal process where only one spouse initiates the divorce proceedings. The spouse who files for the divorce is known as the petitioner, while the other spouse is known as the respondent. In a single petition divorce, the petitioner must provide the grounds for the divorce as provided under Section 54 of the Law Reform (Marriage & Divorce) Act 1976, such as adultery, desertion, or unreasonable behaviour. Once the petition is filed, the respondent can respond and defend against the allegations.
If the court is satisfied that the grounds for divorce are met, it may grant the divorce and order the dissolution of the marriage. The court will also make orders regarding the division of property, child custody, and other matters related to the separation.
Single petition divorce is usually contentious and adversarial as the respondent can contest the allegations and defend against the divorce. This usually results in a longer and costlier process compared to a joint petition divorce as there may be a need for a trial.
Further, prior to the presentation of the single petition divorce, couples are obligated under Section 106 of the Law Reform (Marriage & Divorce) Act 1976 to attend marriage counselling. Should the marriage counselling fail, the Tribunal of Reconciliation of Marriage will then issue a certificate for the parties to proceed with the filing of single petition divorce. However, an application may be made to the Court for an exemption from attending marriage counselling should there be sufficient reasons for such an exemption.
Joint Petition Divorce
A joint petition divorce, also known as mutual consent divorce, is a legal process where both spouses agree to the divorce and file a joint petition with the court. In a joint petition divorce, both spouses are considered co-petitioners, and both must agree to the terms of the divorce, including property division, child custody, and other matters.
The court will review the joint petition and, if satisfied that the terms of the divorce are fair and reasonable, will grant the divorce and order the dissolution of the marriage. Joint petition divorce is generally faster and less costly than single petition divorce because it does not involve a trial or the need for the parties to prove the grounds for divorce.
As opposed to a single petition divorce, couples are not obligated to attend marriage counselling.
Legal Effect Of A Divorce
Once the divorce is granted, the couple is legally free to remarry and their marital status is completely dissolved.
Judicial Separation
However, there may be circumstances in which the married couple wishes to stay apart from each other but does not want the marriage to be dissolved. Such couples may consider applying for a judicial separation.
Judicial separation is a legal process where one spouse petitions the court to issue an order of separation. Unlike divorce, the couple remains legally married after a judicial separation. The court will then review the petition and may grant an order of separation, which will set out the terms of the separation, including the division of assets, child custody, and any other issues related to the separation.
That being said, the process of judicial separation may require a trial to determine the terms of the separation, which may lead to a prolonged and costlier proceeding.
In any case, it must be emphasised that a judicial separation does not dissolve the marriage. As such, the separated couple cannot remarry until they obtain a divorce.
Conclusion
As mentioned at the beginning of the article, non-Muslim married couples in Malaysia that are facing difficulties in their marriage and are intending to end the relationship have the option to dissolve the marriage through divorce proceedings or to maintain the marriage but to be legally separated through judicial separation.
Couples would need to identify the intended outcome and carefully consider the circumstances before deciding which method would be the best for them.
Request Appointment
Contact us at +603 3000 8626 or email to general@brycolaw.com