Interpretation of ‘Reside’ in Judicial Separation Petition
1. Where ‘domicile’ grants jurisdiction for parties to file for divorce, ‘reside’ grants jurisdiction for parties to file for judicial separation. It forms the basis of the petition being filed in the family court, and the source of the courts’ power to grant orders.2. The understanding of these phrases becomes particularly important given how borderless our world continues to become – lawyers with cross-border matrimonial disputes with foreign spouses will need to be well-versed with these terms before advising on the same.
The Law
3. The jurisdiction of Malaysian Court to grant a decree of judicial separation is set out in Section 48(2) Law Reform (Marriage and Divorce) Act 1976 (LRA).
“48. Extent of power to grant relief.
[…]
(2) Nothing in this Act shall authorize the court to make any decree of judicial separation except –
(a) where the marriage has been registered or deemed to be registered under this Act; or
(b) where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and
(c) where both the parties to the marriage reside in Malaysia at the time of the commencement of proceedings.”
4. While the term ‘reside’ is not defined in the LRA, it is noted that the phrase must be distinguished from the term ‘ordinarily resident’ which is expressly used in Section 49(1)(b) LRA.
“49 Additional jurisdiction in proceedings by a wife
(1) Notwithstanding anything to the contrary in paragraph 48(1)(c), the court shall have jurisdiction to entertain proceedings by a wife under this Part, although the husband is not domiciled or resident in Malaysia if –
(a) the wife has been deserted by the husband, or the husband has been deported from Malaysia under any law for the time being in force relating to the deportation of persons, and the husband was before the desertion or deportation domiciled in Malaysia; or
(b) the wife is resident in Malaysia and has been ordinarily resident in Malaysia for a period of two years immediately preceding the commencement of the proceedings.”
5. It appears that ‘ordinarily resident’ is more onerous than ‘reside’ where the latter does not specify any time frame for the person to be in Malaysia.
6. It must also be noted that the term ‘resident’ also appears in Section 3(1) LRA where the ambit of the LRA is set out.
“3. Application
(1) Except as is otherwise expressly provided this Act shall apply to all persons in Malaysia and to all persons domiciled in Malaysia but are resident outside Malaysia.”
7. Reading Sections 3 and 48 LRA collectively, it is not too farfetched to accept that the term ‘reside’ should be understood as requiring the person to be physically in Malaysia for LRA to be applicable.
8. It is also relevant to consider the jurisdiction of this Honourable Court to grant judicial separation decree in the context of English cases (see Section 47 LRA)
“47 Principles of law to be applied
Subject to the Provisions contained in this Part, the court shall in all suits and proceedings hereunder act and give relief on principles which in the opinion of the court are, as nearly as may be, conformable to the principles on which the High Court of Justice in England acts and gives relief in matrimonial proceedings.”
9. The leading case on this is the English Court of Appeal case of Sinclair v Sinclair [1967] 3 All ER 882.
9.1. In that case, an English wife filed a judicial separation petition against a Polish husband while he was in the United States. While he was in the United States, he continued to maintain his tenancy of the matrimonial home in Roehampton area.
9.2. The High Court declared that the court had no jurisdiction to entertain the wife’s petition but the Court of Appeal reversed the same.
9.3. The Lordships distinguished 2 circumstances pertaining to the issue of ‘reside’ for a judicial separation decree – one where the husband is physically present in England at the time of the presentation of the petition and the other where the husband is not physically present.
9.3.1. For the former circumstance where the person is physically present in the jurisdiction, Willmer L.J has this to say.
“Had the husband been physically present in England on that date, I think that there could be no doubt but that the court would have had jurisdiction to entertain the proceedings, unless it could fairly be said that he was here merely in transit; see Armytage v. Armytage (27), Anghinelli v. Anghinelli (28) and Matalon v. Matalon (29).”
9.3.2. For the latter circumstance where the person is not physically present in the jurisdiction, His Lordship said this.
“I think that the law is correctly stated in CHESHIRE ON INTERNATIONAL LAW (7th Edn.), p. 353 as follows:
“The test of residence in this context is satisfied if the respondent is physically present in England, provided that he is not there merely in itinere or on a casual visit; (Matalon v. Matalon (29)). In determining the nature of his visit regard must be had both to its duration and its nature. A comparatively short visit will not be deemed casual if, for instance, his object is to attempt a reconciliation with his wife or to obtain an order for custody of the children; (Armytage v. Armytage (27), Matalon v. Matalon (29)). If he maintains the matrimonial home in England, the residential qualification is satisfied, although he may be abroad in the pursuit of his calling at the time of the petition, as may well happen, for instance, in the case of a seaman or man of business; (Raeburn v. Raeburn (31), Ward v. Ward (30)). It is not enough that the petitioner alone resides here; (Graham v. Graham (32)).”
9.4. In that case, the Court considered not merely whether the respondent was physically present in the jurisdiction but also to his whole environment and the situation of his wife and family (e.g., the matrimonial home, the situation of his wife and children, his own movements, location and way of life, the last place of cohabitation and the events leading up to the suit and subsequently).
9.5. As the husband in that case had a matrimonial residence in England at the commencement of the suit, the court determined that the judicial separation petition can be entertained by the court even though he was not in England when the petition was presented.
10. The following are a few other cases of the former instance where the husbands were in England at the commencement of the suit which allowed courts to have the jurisdiction to determine the judicial separation petition.
10.1. In the English Court of Appeal case of Matalon v Matalon [1952] 1 All ER 1025, the husband was found to reside in England even though he has no house in England and moved from place to place living in hotels and boarding-houses. He went to England partly on business, he being the representative or manager of a textile firm in Jamaica, and partly to get the custody of his child. The husband was there between 20 August 1950 until 20 December 1950, and the wife filed the petition on 31 October 1950 and served it on him while he was in England.
10.2. In the English High Court case of Armytage v Armytage [1898] P 178, the Court also held that the husband did reside in England.
“I have now to deal with the question of jurisdiction. The further facts necessary to refer to are these: The petitioner came to this country with her children on or about May 25, 1897, and she and the children have since resided under parents’ roof and at Bexhill. The respondent’s solicitor on May 31, 1897, wrote on behalf of the respondent to the petitioner and her father requesting the petitioner to return with the children to her husband, but she declined to comply with this request. At the end of June, 1897, the respondent came to, and has since resided in, England, but I understand he has not taken up a permanent residence here, and has only come to and is remaining in England for the purpose of enforcing, and so long as may be necessary to determine, such rights as he may have against the petitioner with regard to the children. In the month of November, 1897, he settled the sum of 100l. on each of his children, and made them wards of Court in Chancery. He thereupon applied to North J. for an order for the custody of the children, which was met by a cross-application on the part of the petitioner. In the meantime these proceedings were commenced, and the respondent was served with the citation and petition in this country.”
11. The relevant timeline to confer jurisdiction of judicial separation petition was set out in the High Court case of Anthony v Anthony (Nee Pragasam) [1959] 1 MLJ 42. The High Court has this to say:
“I remind myself that the time of the commencement of the proceedings is the critical time. The point is a short one: Did both parties to the marriage reside in the Federation at the time of the commencement of the proceedings? Unless they did nothing in the Ordinance authorises the Court to make a decree of restitution of conjugal rights. It is not disputed that respondent resided in the Federation at the relevant time. This leaves the only point in issue: Did petitioner reside in the Federation at the time of the commencement of the proceedings? As petitioner claims that he did, I think it may be pertinent, though not conclusive, to enquire whereabouts in the Federation? I can find no satisfactory answer to this question.”
11.1. In that case, the petitioner filed the suit when he was living in Singapore and also gave a Singapore address. Even though his work allowed him to travel between the Federation and Singapore, he had intended to make Singapore his residence for an indefinite period.
“I remind myself that the time of the commencement of the proceedings is the critical time. The point is a short one: Did both parties to the marriage reside in the Federation at the time of the commencement of the proceedings? Unless they did nothing in the Ordinance authorises the Court to make a decree of restitution of conjugal rights. It is not disputed that respondent resided in the Federation at the relevant time. This leaves the only point in issue: Did petitioner reside in the Federation at the time of the commencement of the proceedings? As petitioner claims that he did, I think it may be pertinent, though not conclusive, to enquire whereabouts in the Federation? I can find no satisfactory answer to this question.”
12. In another High Court case of Anthony v Anthony [1957] 1 MLJ 159, Smith J held that a bare statement of residence is sufficient without the need to provide precise residence in the petition.
“I consider that this supports the petitioner’s argument that all that is required is that the petitioner must allege residence. I agree with Mr. Devaser that that bare statement is sufficient. If particulars of the residence are required, these can be obtained in the usual way but I can see no necessity for any precise residence to be alleged in the petition. Paragraph 1 of the application is therefore dismissed.”
Recent High Court Decision on the Issue
- This issue was recently considered in the High Court case of Jonathan Peter Davies v Tan Chew Yinn [2025] CLJU 1742 (Jonathan’s case).
- The facts of the case are not relevant for the scope of this discussion.
- What is relevant is how the High Court interpreted the term to ‘reside’ in the context of judicial separation petitions.
15.1. Her Ladyship referred to the following sources to interpret the ‘reside’ term (see Paragraphs 10, 36 and 37 (supra)):
15.1.1 LexisNexis Malaysia’ s Words, Phrases and Maxims
“Residence is a word used in law to denote the fact that a person dwells in a given place or in the case of a corporation that the management is carried on there…. The place where a man established his abode and makes the seat of his property and exercises his civil and political rights; the place where one habitually sleeps; where one sleeps and lives: the place where a man is chiefly to be found. Of a corporation, its chief office or place of business, the place where the real trade or business is carried on; in another sense, its citizenship.”
15.1.2. Datuk Syed Kechik bin Syed Mohamed v Government of Malaysia & Anor [1979] 2 MLJ 101
“The Oxford English Dictionary defines the word “reside” to mean “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place.” The word “residence” implies some decree of permanence and continuity.”
15.1.3 Halsbury’ s Laws of Malaysia- Conflict of Laws
“Generally, ‘residence means physical presence other than casually or as a traveller. ln considering whether residence is established the court considers a man’s whole environment, especially in relation to his wife and family. and not merely his physical situation.”
15.2. Her Ladyship also distinguished the English cases cited above on the following basis and preferred the interpretation of ‘reside’ in the local sources as set out
“[22] The Petitioner relied on several English authorities to support his claim of residence, namely Sinclair v. Sinclair [1967] 3 All ER 882, Armytage v. Armytage[1898] P 178, and Matalon v. Matalon [1952] 1 All ER 1025. However, a close examination of the factual circumstances in those cases revealed that the cases cited were materially distinguishable from the present case, and, therefore, offer limited assistance to the Petitioner.
[23] In all three authorities cited, it was the wives who were resident or domiciled in the UK, and who had instituted proceedings against their husbands who were either absent or not permanently residing in the UK. The courts in those cases were concerned with whether the absent husbands maintained sufficient connection to the jurisdiction to establish residence or justify the court’s exercise of jurisdiction.
[24] In contrast, the present case involved a reversed dynamic, namely that it was the Petitioner who came to Malaysia and filed the Judicial Separation Petition against the Respondent who had long been resident in Malaysia with the This factual reversal was significant and undermined the applicability of the authorities relied upon by the Petitioner.”
- Eventually, Her Ladyship found that the petitioner, on the facts, did not ‘reside’ in Malaysia to commence the judicial separation petition.
Analysis and Implication
- Although the differences are subtle, the accuracy in knowing what the law says will make or break a case.
- Essentially, the term ‘reside’ decided in Jonathan’s case differs from the English position as follows in the context of a petitioner who is physically present in the jurisdiction when the petition is presented:
| The English position as set out in Sinclair | The position as set out in Jonathan’s case as supported by the interpretation in the Malaysian context: |
| “Had the husband been physically present in England on that date, I think that there could be no doubt but that the court would have had jurisdiction to entertain the proceedings, unless it could fairly be said that he was here merely in transit” |
|
- Jonathan’s case appears to set a higher standard to the term ‘reside’ than what is required in the English This is contrary to:
19.1. Section 47 LRA where courts are required to apply principles, as nearly as may be, conformable to those applied the High Court of Justice in England acts and gives relief in matrimonial proceedings; and
19.2. the maxim generalia specialibus non derogant as propounded in the Federal Court case of Robinder Singh Jaj Bijir Singh v Jasminder Kaur Bhajan Singh [2024] 3 CLJ 647 when it comes to conflicting positions between general and family law.
- With respect, it does not appear that there are any reasonable grounds to distinguish the English case of Sinclair and the likes to prefer a different interpretation of the term ‘reside’.
- The higher standard on the term ‘reside’ may also cause overlaps with similar terms such as ‘domicile’ and ‘ordinary resident’.
- At this juncture, it is important to note that an appeal was filed against the decision of Jonathan’s However, parties eventually agreed for the appeal to be withdrawn in view that the wife had agreed to file a single petition for divorce instead. Even if the husband did not have jurisdiction to begin with, additional jurisdiction pursuant to Section 49 LRA can still be conferred through the wife who is an ordinary resident in Malaysia.
Conclusion
23. From my research when doing Jonathan’s case, the most recent case where this issue on jurisdiction in the context of judicial separation petitions was raised in Malaysia (or Malaya at that time) appears to be around 1959.
24. Although Jonathan’s case did not get the chance to be tested by the Court of Appeal, it had, at least, renewed discussion on this issue.
25. It is hoped that another case of similar nature can be tried and tested on its principles to clarify the interplay between terms such as ‘domicile’, ‘reside’ and ‘ordinary resident’.
This article is written by
Tay Kit Hoo
Head of Matrimonial Dispute Resolution Department, Low & Partners
Qualified Mediator (MIMC)
Registered Collaborative Practitioner (IACP)
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