JUDICIAL SEPARATION
IN MALAYSIA
Understanding the Legal Framework
Judicial Separation is an alternative option to divorce that allows married couples to live apart without dissolving the marriage.
In Malaysia, judicial separation is recognised under the Law Reform (Marriage & Divorce) Act 1976 and provides spouses with formal Decree of Separation while maintaining their legal marital status.
This option is beneficial for those who are not ready to end their marriage permanently but need to live separately due to irreconciable differences.
Grounds for Judicial Separation
One must understand whether a marriage is falling within the category of void marriage or voidable marriage, as the legal requirements differ for the type of marriages.
A void marriage is one that is considered invalid from the outset. In the eyes of the law, a void marriage never exists. The grounds for a void annulment therefore are typically more severe, as they involve the fundamental issues that make the marriage legally impossible to enforce.
Following are the grounds when a marriage deemed void to proceed for annulment:
Marriages between close relatives are usually void.
For example, marriages between siblings or between parents and children are not legally recognised.
If one of the party was already legally married to another person at the time of the existing marriage, the second marriage thus become void.
Bigamy is illegal under common law.
If one of the party is below the age of 18 and do not obtain relevant consent, then the marriage deemed void.
When the spouses are not male & female respectively.
A voidable marriage, on the other hand, is a marriage that is valid until it is annulled by a court order.
Unlike void marriages, a voidable marriage is recognised as legal until the annulment is granted.
Following are the grounds when a marriage deemed voidable to proceed for annulment:
Either one of the spouse is unable to consummate the marriage due to the incapacity. For example : The Husband suffers from erectile dysfunction.
The marriage was not consummated due to the wilful refusal of the Respondent.
Either one of the party did not consented to the marriage. In other words, one spouse married the other due to the element of force, etc.
One of the spouse at the time of marriage was a mentally disordered person within the meaning of Mental Disorders Ordinance 1952.
The Respondent was suffering from veneral diseases at the time of marriage and that the Petitioner is not aware of this.
At the time of marriage, the Respondent is pregnant with a third party.
Why Annulment Over Divorce in Malaysia?
Annulment may be preferable over divorce in certain situations, especially when there are significant issues with the validity of the marriage.
For instance, if you discover that your spouse was already married to someone else at the time of your marriage, an annulment would be more appropriate instead of Divorce.
FAQ
How long does an annulment petition take to finalise?
The duration varies depending on the complexity of the case, but it typically takes few months to a year except for contested annulment.
Can I remarry after an annulment?
Yes, once annulment order been granted & updated with JPN, you are free to re-marry.
What if my spouse does not agree to the annulment?
If your spouse contests the annulment, the process may take longer time and require additional evidences to put forward in the trial.
Can I get maintenance from annulment order?
No, maintenance is not allowed for annulment.
I married someone from a prohibited relationship chain and having a child from the marriage. What is the status of the child?
Although the marriage will be annulled, the child will remain a legitimate child.
