Adultery – the other person

Marriage is a sacred bond between two individuals who committed to each other, sharing their lives together and embarking on a single journey together. A revered, monogamous institution that existed for the longest time in the history of mankind’s civilisation.

When such sanctity is accorded to marriage, it is without question that any relationship that goes beyond the marital bonds is plainly a betrayal. And such a relationship is often said as infidelity. Infidelity can be in many forms; for example, emotional infidelity which involves a married person forming a special bond with someone other than his or her spouse which or may not be sexual in nature; sexual affair which means as the phrase itself indicates, a sexual relationship with another person who is not their spouse. There are many other types of infidelity; however, in this article, the purpose shall only be directed towards the discussion of adultery, which involves physical/sexual relationship outside the bonds of marriage.

Adultery, is defined in the Merriam-Webster dictionary as “a voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner”. This definition was given weight by the Malaysian courts in which physical/sexual relationship with another person to whom the husband/wife is not married to. S. 54 (1) (a) of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) stipulates adultery as one of the grounds that contribute to the breakdown of a marriage.

It is to be noted that when an individual seeking divorce on the basis that his/her spouse had committed adultery, that individual has to prove that due to the adultery being committed, it is no longer reasonable to expect him/her to stay with her spouse who committed the said adultery. This a conjunctive requirement; it is not enough to merely plead insinuations of an apparent physical/sexual relationship outside the marriage.

This was emphasised in a recent court case decision, HLC v PTL & Anor [2024] MLJU 778 in a novel set of facts, the court held that the petitioner wife in that case who commenced the divorce proceedings against her husband and cited the third party woman as co-respondent, cannot rely on adultery as her basis to seek divorce as she had condoned the said adultery when she voluntarily signed an agreement after marrying her husband which allowed her husband to have a mistress after their marriage. The court further held that at the material time of signing the agreement, she has given her consent which indicated that she found it reasonable for him to commit adultery and therefore she is not allowed rely on the same ground seeking divorce.

S. 58 (1) of the LRA provides that an individual can cite the third party with whom their spouse committed adultery with in their divorce petition or cross-petition meanwhile S. 58 (2) of the LRA allows the individual to claim damages from the third-party for causing the breakdown of the marriage. Despite so, it is imperative to note that the court has the power to award damages which it may deem fit in the event the accusations of adultery is proven against the third party and the said relief is not punitive or exemplary, vide S. 58 (3) (b) of the LRA.

A person relying on adultery as the reason for breakdown of marriage, it has to be proven in court strongly that their spouse had sexual intercourse or circumstances leading to sexual intercourse. In other words, “the evidence must go beyond establishing suspicion and opportunity to commit adultery and must be as such to satisfy the court that from the nature of things, adultery must have been committed. “

It is not enough to merely put forward speculations in form of WhatsApp conversations or photos depicting the parties posing together or some other evidence similar in nature. This is because adultery is a very strong accusation against a person and therefore, it is highly imperative upon the person who is making such accusation to adduce concrete, primary evidence in court to prove the accusation.