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Question 57
If my husband does not reside in Malaysia, can I still apply?
According to Section 49(1) of the Law Reform (Marriage and Divorce) Act 1976, you can still apply for a decree of judicial separation even if your spouse does not reside in Malaysia under the following two circumstances:
Being deserted by a husband who is domiciled in Malaysia (even if the husband subsequently acquires a foreign domicile).
Having continuously resided in Malaysia for at least two years immediately preceding the application.

Question 58
Under what circumstances can I apply for a decree of judicial separation?
According to Section 54 of the Law Reform (Marriage and Divorce) Act 1976, the court will consider the following factors when deciding whether to grant a decree of judicial separation:
The other party has committed adultery and you find it intolerable to continue living with them.
The other party has behaved in such a way that you cannot reasonably be expected to live with them.
The other party has deserted you for a continuous period of at least two years immediately preceding the application.
The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the application.

Question 59
What is the impact of a decree of judicial separation on my husband and me?
The legal effects of a decree of judicial separation include:
The marriage relationship remains legal and valid.
Neither party may remarry before a formal divorce.
Both parties are no longer obligated to cohabit (live together).
Both parties can still apply for a mutual or unilateral divorce at any time.
You can no longer claim damages from a third party on the grounds of adultery.
If the wife dies intestate (without a will), the husband cannot inherit her estate; however, if the husband dies intestate, the wife can still inherit his estate according to the law.

Question 54: How can I prove to the Court that my husband has deserted me for at least two consecutive years before filing the petition?

Question: How can I prove to the Court that my husband has deserted me for at least two consecutive years before filing the petition?

Answer: You may rely on evidence such as your chat history, messages, or any other communication records to show that both of you have had no contact or marital relationship for a continuous period of at least two years. In law, “desertion” refers to one spouse intentionally leaving the other without consent and abandoning the marital relationship.

Question 51
What happens if I successfully sue my husband’s adulterous partner? What if my claim fails?
If your claim is successful, the court may order the other party to pay you damages.

If your claim is unsuccessful, you may be ordered to pay the other party’s legal costs.

Question 52
Apart from adultery, what other grounds can I rely on to prove that the marriage has broken down and file a unilateral divorce petition?
Under Section 54(1) of the Law Reform (Marriage and Divorce) Act 1976, other grounds include:
Your spouse has behaved in such a way that you cannot reasonably be expected to continue living with him or her.
Your spouse has deserted you for a continuous period of at least two years immediately before the filing of the divorce petition.
Both parties have lived apart for a continuous period of at least two years immediately before the filing of the divorce petition.

Question 50
What kind of evidence can I use to prove that my husband has committed adultery?
Generally, adultery may be proven through the following types of evidence:
Circumstantial evidence
The birth of a child where the alleged father had no contact with the mother during the period of conception (used when alleging the wife’s adultery)
The child’s birth certificate showing both parties as the parents
Evidence that one party contracted a sexually transmitted disease from a third party
An admission of adultery by the adulterous party

Question 47
Must I have evidence of my husband’s adultery before I can bring a legal claim?
In most cases, the other party is unlikely to admit to committing adultery. Therefore, it is advisable to obtain evidence of the adultery.

However, it is important to note that, when proving adultery in court, you must satisfy the court that there is no other reasonable explanation apart from adultery (Beyond Reasonable Doubt).

Question 48
If my husband committed adultery only after we had separated, can I still take legal action against his adulterous partner?
Yes.

However, if the adultery occurred only after your marriage had already broken down, you cannot rely on that adultery as the ground for filing a unilateral divorce petition.

Question 44
If my husband has committed adultery, do I still need to live separately from him for two years before filing a unilateral divorce petition? Or can I file immediately?
You do not need to be separated for two years.

As long as you have evidence of your spouse’s adultery, you may file a unilateral divorce petition.

However, you must prove to the court that:
Your spouse’s adultery has made it intolerable for you to continue living together.
The adultery has caused the marriage to break down.

Question 45
Can I take legal action against the person with whom my husband committed adultery?

Question 41
Can I file a unilateral divorce petition after obtaining the Conciliation Certificate?
Yes. Once the Conciliation Certificate has been issued, you may proceed with filing a unilateral divorce petition in court.

Question 42
If my spouse refuses to attend the Conciliatory Body, will I still receive the Conciliation Certificate? Will this affect my unilateral divorce application?
Yes. Even if either party fails to attend the conciliation proceedings, the Conciliatory Body may still issue the Conciliation Certificate, stating that the conciliation has failed.

This will not prevent you from proceeding with a unilateral divorce petition.

Question 43
Must I be separated from my spouse for at least two years before filing a unilateral divorce petition?
No.

You only need to prove to the court that the marriage has broken down irretrievably.

Question 40
What happens during the conciliation process? How will the Conciliatory Body help my spouse and me reconcile?
Both parties are required to attend the conciliation sessions and will each be given an opportunity to express their views.

If the conciliation is unsuccessful, the Conciliatory Body will issue a conciliation certificate together with any recommendations it considers appropriate, which may include:
Maintenance arrangements
Division of matrimonial assets
Child custody arrangements
Child access and visitation arrangements

Q37–Q39

Question 37:
If my spouse and I do not wish to attend the Conciliatory Body, can I still file a Single Petition for Divorce? How can my lawyer assist me?
Yes. You may explain to your lawyer why attending the Conciliatory Body is not appropriate in your circumstances, and your lawyer may apply to the Court for an exemption from the conciliation process on your behalf.

Question 38:
On what grounds can I apply to the Court for an exemption from attending the Conciliatory Body?
Under Section 106 of the Law Reform (Marriage and Divorce) Act 1976, the Court may grant an exemption in circumstances including:

Your spouse has deserted you or his or her whereabouts are unknown;
Your spouse is residing overseas and is unlikely to return to Malaysia within six months after the divorce petition is filed;

Q33–Q36

Question 33:
If I want to get a divorce but my spouse refuses, what should I do?
You may file a Single Petition for Divorce.

Question 34:
Is there anything I must do before filing a Single Petition for Divorce?
Generally, before filing a Single Petition for Divorce, both parties must first attend a Conciliatory Body to attempt reconciliation.

Question 35:
What is a Conciliatory Body, and where can I find one?
Under Section 106(3) of the Law Reform (Marriage and Divorce) Act 1976, a Conciliatory Body includes