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Groups: LWB06D&E

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Ñ | udicial separation (JS) is when both parties
in the marriage legally separate upon
application of either party for the decree
without committing any matrimonial offence 

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Ñ Section 48(2) must be satisfied.
Ñ Court will have the urisdiction to make a decree
only if:-
Ñ the marriage has been registered or deemed to be
registered under LR|
or
Ñ The marriage between the parties was contracted under a
law providing that, or the marriage is monogamous
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Ñ Where both the parties to the marriage ÷


??
? at the time of the commencement of
proceedings.

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Ñ Section 64 of LR|: that a petition for JS can be
brought by either party to the marriage. (Petitioner)
Ñ The grounds can be the same grounds that are
brought for a petition of a divorce under section 54
of LR|. (Grounds)
Ñ No restriction of time is provided under LR|.
Hence the petition for JS can be made at any time
during the existence of a valid marriage.
(Restriction)
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Ñ Section 64(2) declares that once a court grant a decree, the petitioner is
under no obligation to cohabit with the R.
Ñ Section 64(3): the court is empowered to rescind the decree at any time
on the ground that it was obtained in the absence of the person against
whom the decree was made. Example, the decree was made on the
ground of desertion, if there can be proven a reasonable cause for the
alleged desertion, the court may rescind the decree.
Ñ Section 65: JS no bar to petition for divorce. The fact that the petitioner
had at any time been granted a decree of JS upon a certain ground, it will
not prevent the petitioner to petition for divorce on the basis of the same
set of facts. The court may treat the decree of JS as sufficient proof of
the adultery, desertion or other ground on which it was granted, but it
shall not pronounce a decree of divorce without receiving evidence from
the petitioner.

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Ñ Section 66(1): that the property of the wife who at
the time of her death is udicially separated from her
husband shall, in case she dies intestate, go as it
would have gone if her husband had been then
dead.
Ñ Section 66(2): where, upon any such JS, alimony has
been decreed or ordered to be paid to the wife and
the same is not duly paid by the husband he shall be
liable for necessaries supplied for her use.
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Ñ The petitioner is under no obligation to
cohabit with R (section 64(2) of LR|)
Ñ However, they are not allowed to marry any one
else unless and until they obtain a decree of
divorce.

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Ñ Section 76: provides power to the court when granting a decree of
divorce or JS to order the division of the assets acquired by parties during
the marriage either by their oint effort [section 76(1) of the LR|  or by
the sole effort of the party as stated in section 76(3) of LR|
Ñ Section 77(b): power of the court 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 JS.
Ñ Section 88(1): the court may order the custody of the child either to his
or her father or to his or her mother at any time, where there are
exceptional circumstances making it undesirable that the child be
entrusted to either parent, of any other relative of the child or of any
other association the ob ects of which include child welfare or to any
other suitable person.

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Ñ Soo Lina v Ngu Chu Chiong [1992 2 MLJ 870
Ñ The parties had been udicially separated and there was a consent
order for maintenance, property division and custody of the child of
the marriage entered at the time the decree of JS was made.
Subsequently the petitioner filed for divorce and apply for ancillary
relief of maintenance for a higher sum (to vary the consent order).
Ñ It was held: the consent order is a final order and could only be set
aside if it was shown that the consent order was obtained through
misrepresentation or mistake of facts or where there has been any
material change in the circumstances (maintenance order-section 83
LR|). Meanwhile, on property ad ustment, there is no statutory
provision in respect of variation for a property ad ustment order.
Hence once the order is made, section 76(1) of LR| intends to make
such an order final..
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