In this article, we will focus on adultery as a ground for divorce. Under Section 54(1)(a) of the Law Reform (Marriage and Divorce) Act 1976 ('LRA 1976'),1 the fact that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent, is one of the facts and circumstances which the court shall have regard to in its inquiry into the proof of breakdown.
Meaning of adultery
The High Court in GGC v. CCC & Anor2 has shed some light on the meaning of adultery, where it referred to an English case:-
[68] In Clarkson v. Clarkson [1930] 143 LT 775, 46 TLR 623 it was held that adultery is the voluntary sexual intercourse between a man and woman who are not married to each other but one of them is at least a married person.
[69] One party must still be married and the other party may be married to someone else or single or divorced. From the definition, other forms of sexual contacts short of sexual intercourse is not adultery though parties may be said to have an affair or that they have been unfaithful to their spouse. In other words, it is not adultery of the mind that is being made punishable with a damages award against the adulterer or adulteress, but the physical act that had resulted in the breakdown of the marriage of the innocent party. That is the statutory test though the spiritual test is of a higher standard in that anyone who lusts after another while still married to one's spouse would have committed adultery already in his or her heart. It has often been said that the burden of proof is throughout on the person who alleges adultery, there being a presumption of innocence. See Raydon on Divorce (12th edition) p 193. (emphasis added)
Based on this definition, it is clear now that sexual intercourse is required to constitute adultery as a ground for divorce.
Usually established by indirect circumstantial evidence
As alluded earlier, sexual intercourse is required to constitute adultery. This follows that evidence of adultery is not expected to be of a direct one. Instead, circumstantial evidence may be relied upon to establish adultery. In GGC (supra)3, it was held:-
[85] The Petitioner further submitted that adultery has to be inferred from the circumstances of the case. It would be unreasonable to expect direct evidence of adultery unless of course a child is born and DNA test revealed the child's parentage. Normally the matrimonial offence of adultery is expected to be established by circumstantial evidence, but in that event the circumstances must be such as to lead to the necessary conclusion that adultery was committed by the spouse concerned. On the other hand, it would not be possible to lay down what circumstances would be sufficient to establish adultery, because circumstances may be diversified by the situation and character of the parties, by the state of general manners and by many other incidental circumstances, apparently slight and delicate in themselves, but they may have important bearing on the particular case. See the case of Yew Yin Lai v. Teo Meng Hai & Anor [2007] 5 CLJ 737; [2013] 8 MLJ 787 where it was observed as follows:
"[67] In the present case there is no other explanation for the conduct of the respondent other than that there was indeed an affair. In this case the respondent and co-respondent had all the opportunity. The respondent had once before admitted to the petitioner, that he did have extra marital affair. He was forgiven by the petitioner. The inference of adultery arises when there is proof of the disposition of parties to commit adultery, together with the opportunity to commit it." (emphasis added)
Some non-exhaustive examples, among others, include cohabiting at the same residence, or showing intimate behaviors, as can be seen in the judgment of the High Court in YAY v. WHO & Anor,4 where it was held:-
[26] As such, just one act of voluntary sexual intercourse would suffice to establish adultery in the context of s. 54(1)(b) of the Law Reform (Marriage & Divorce) Act. In any event, as alluded to earlier, it was my finding that the respondent and co-respondent had cohabited at the respondent's residence at least in 2017, which, although circumstantial evidence, was sufficient to prove that adultery had been committed.
[27] There were also video recordings taken sometime in 2018, which showed the respondent and co-respondent with another couple in a restaurant, where they were sitting intimately, with the co-respondent sliding over and leaning her head on the respondent's shoulder. Her dressing and mannerism were indicative that her relationship with the respondent was more than platonic, contrary to what the co-respondent had claimed.
Burden of proof
The salutary judgment by the Federal Court in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd5 makes it clear that in civil cases there is only one standard of proof in civil cases even in hybrid cases - that standard of proof is on a balance of probabilities.
Applying the foregoing principle, the High Court in Glaret Shirley Sinnapan v. Sivasankar Kunchiraman & Anor6 held that the standard of proof to be applied for an allegation of adultery is balance of probabilities:-
[50] The Federal Court made it clear in Sinnaiyah v. Damai Setia that there are only two standards of proof ie, (i) beyond reasonable doubt in criminal cases, and (ii) on a balance of probabilities in civil cases. It held that the standard of proof of fraud in a civil case is on a balance of probabilities. It held...
[51] A petition for divorce or for judicial separation is a civil action. It is not a criminal action. Therefore, based on the Federal Court's decision in Sinnaiyah v. Damai Setia, the standard of proof of adultery in a petition for divorce or judicial separation is proof on a balance of probabilities.
Not relevant for division of matrimonial assets, but relevant for maintenance assessment
It is notable that the fact that a party has committed adultery is not relevant in a division of matrimonial assets under Section 76 of the LRA 1976.7 However, when it comes to maintenance assessment, such conduct would be relevant under Section 78 of the LRA 1976, which provides:
78 Assessment of maintenance
In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. (emphasis added)
This position is confirmed by the judgment of the High Court in GGC v. CCC & Anor8, where it was held:-
[34] It has been held that the degree of responsibility for the breakdown of the marriage has no application in a division of matrimonial assets under s. 76 LRA unlike a wife's maintenance application under s. 78 LRA. See the case of SS v. HJK [1991] 1 LNS 99; [1992] AMR 145 at p. 152 where Mahadev Shankar J (as he then was) was astute to point out the discernible difference in the absence of the legislative provision for consideration of adultery in s. 76 of LRA as follows:
"Indeed it should be noted that the regard a Malaysian Court is required to have to the degree of responsibility for the breakdown of the marriage" under section 78 of the Act does not occur in section 76 of the Act. In other words, this is a factor only in maintenance applications, not in a division of matrimonial assets."
[35] Likewise in Lim Bee Cheng v. Christopher Lee Joo Peng [1996] 2 CLJ 697 at p. 698 it was held as follows:
"The power of the Court to order division of matrimonial asset under section 76 is subject and subject only to those considerations prescribed therein and that conduct of the parties is and has always been irrelevant." (emphasis added)
Damages against the adulterer/adulteress
Under Section 58 of LRA 1976, on a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.
This means that if adultery is alleged, the party making such allegation must make the adulterer or adulteress as a co-respondent. The abovementioned High Court case of Glaret Shirley Sinnapan (supra)9 has confirmed this interpretation, where it was held:-
[54] RH had alleged adultery on the part of RW in his cross-petition. Pursuant to s. 58 of the LRA, he must make the students that he alleged PW to have had adulterous relationships with co-respondents in his cross-petition, unless excused by this court...
Further, pursuant to Section 59(1) of LRA 1976, the court may award damages against a co-respondent notwithstanding that the petition against the respondent is dismissed or adjourned.
The abovementioned High Court case of YAY (supra)10 has illuminated on the nature of such damages, where it was held:-
[37] It is trite law that damages awarded pursuant to s. 59 of the Law Reform (Marriage & Divorce) Act are compensatory in nature. Reference was made to Leow Kooi Wah v. Philip Ng Kok Seng & Anor [1997] 1 LNS 419; [1997] 3 MLJ 133, where the concept of damages against a co-respondent was explained by Mahadev Shankar J (as he then was), in the following passage:
Excluding the exemplary and punitive elements seems to mean that the court must exclude all concerns for moral or social outrage. What is left is compensatory damages. This is rooted in the duty of the court to restore the petitioner and the children, so far as money can, to the life they would have enjoyed if the break-up had not occurred. But who is to say how this family would have developed if Fifi had not come into their lives? This must be why the quantum has been left to the discretion of the court. (emphasis added)
[38] Bearing in mind that the petitioner was abandoned during her pregnancy due to the adulterous relationship between the respondent and co-respondent, I had ordered the co-respondent to pay the petitioner damages in the amount of RM70,000, which in my view was fair and reasonable. (emphasis added)
Where a marriage is fraught with difficulties, one should remember that seeking solace in the adulterer or adulteress is not a remedy but would rather still constitute an inexcusable adultery which can eventually lead to the irretrievable breakdown of the marriage. As the common excuse goes, 'the marriage had crumbled long before that', it would be an inexplicable lapse of judgment to seek comfort in the arms of the adulterer or adulteress whilst being in a marriage as the adultery committed can very much be the 'nail in the coffin'.
Footnotes
1. Section 54(1)(a) of the Law Reform (Marriage and Divorce) Act 1976
2. [2016] CLJU 885
3. ibid
4. [2023] 3 CLJ 135
5. [2015] 5 MLJ 1
6. [2023] 1 CLJ 218
7. Subsection 2 of Section 76 provides:
In exercising the power conferred by subsection (1) the court shall have regard to-
(a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family;
(aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;
(b) any debts owing by either party which were contracted for their joint benefit;
(c) the needs of the minor children, if any, of the marriage;
(d) the duration of the marriage,
and subject to those considerations, the court shall incline towards equality of division.
8. [2016] CLJU 885
9. [2023] 1 CLJ 218
10. [2023] 3 CLJ 135
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
