Adultery & Divorce: Navigating The Legal Maze in Malaysia

Despite the taboo surrounding the age-old act of adultery, it still  prevails as the second-highest reason for divorce in Malaysia as of  2023. In Malaysia, adultery is ruled under both civil law and Syariah  law, with the former applying only to non-Muslims. In this article, Adultery & Divorce, we  aim to set out what amounts to adultery and what evidence  petitioners will be required to adduce in order to be successful in  court. 

Adultery is the second-highest causes for divorce in Malaysia as at 2023

Q 1: How do I get a divorce on the grounds of adultery? 

The petitioner must satisfy the requirement that:  

i. The respondent has committed adultery against them;  and  

ii. The petitioner finds it intolerable to live with the  respondent. 

Q 2: What actually amounts to adultery in the eyes of the law?  

The High Court in 2016 concluded that adultery refers to the  voluntary sexual intercourse between a woman and a man, with  the stipulation that at least one of the parties was a married  individual.  

Due to this specific condition, alternative forms of sexual relations  not amounting to sexual intercourse will thus not equate to adultery  – and will instead be labelled an affair between parties or will  equate to being unfaithful to their respective existing partners.  

Q 3: What is the burden and standard of proof needed to prove  adultery in Malaysia?  

The burden of proof in cases involving infidelity remains on the  individual who alleges that their spouse has committed adultery.  This is attributed to the presumption of innocence which the  petitioner needs to rebut.  

The standard of proof required to successfully prove adultery  would be on the balance of probabilities – as in all civil cases. The  Federal Court has asserted that this is because tangible proof of  adultery is difficult to obtain, and so the standard of proof  remaining consistent with civil cases is appropriate. The evidence  must also be of a nature that would lead a reasonable man to  conclude that adultery has taken place.  

Q 4: What are some examples that will assist in proving adultery  to the court?  

The courts will consider either circumstantial evidence or direct  evidence for each case.

Circumstantial Evidence  

This is the most common type of evidence in adultery cases,  and will assist a petitioner’s case if they are able to prove that  the respondent’s adultery cause the irretrievable breakdown of  their marriage. 

Examples of circumstantial evidence which has been accepted  by the court include: 

i. Text messages between the respondent and co respondent alluding to romantic meetings or past and  future sexual activities,  

ii. Evidence of cohabitation e.g. photographic or video  evidence of the respondent and co-respondent  entering and leaving the same residence repeatedly,  

iii. Love letters between the respondent and co respondent,  

iv. The respondent buying movable or immovable  properties for the co-respondent with no valid  explanations other than the affair,  

v. Intimate photos or photos depicting the parties on  vacation,  

vi. Witness testimonies from those frequently around the  respondent and co-respondent, or 

vii. Proof of contracting sexually transmitted diseases  from external parties to the marriage.

Direct Evidence  

Photographs, videos or eyewitness accounts of the respondent  and co-respondent engaging in the adulterous act will also be  beneficial to a petitioner’s case – although harder to obtain. 

Petitioners are also able to hire Private Investigator’s to assist them in  compiling evidence related to the affair. It is important to ensure however  that the Private Investigator is properly licensed and is able to pass a  cross-examination in court, in order for the evidence found to be given  weight and deemed reliable.  

Q 5: The court has established adultery, will this be beneficial to me in  any way during the rest of my divorce proceedings?  

A single petition for divorce can now be filed on the conditions that the  judge concludes: 

a. The marriage has irretrievably broken down and,  

b. It will be just and reasonable to grant a divorce for the parties’  marriage. 

Maintenance Payments  

A finding of adultery may also be favorable to the petitioner in regard to  maintenance payments. This is attributed to the fact that the court will  account for the degree of responsibility of each party towards the  breakdown of the marriage, and the petitioner may monetarily benefit  from the respondent’s actions.  

Additionally, if the adulterer is named a co-respondent in the  proceedings, the petitioner may be able to claim damages from the  adulterer. The amount will equate to a sum that will assist the petitioner,  along with any kids that were party to the marriage, in returning to their  normal lives preceding the adultery. Damages will be given entirely at  the court’s discretion and can range between RM 20,000 – RM 150,000.00.

To prove adultery, the petitioner will have to pose to the court  circumstantial or direct evidence of their spouse’s adultery and  discharge their burden of proof on the balance of probabilities. 

As a result, the court will then proceed to make a decree for the  dissolution of the marriage if it is satisfied that it is just and  reasonable to do so – including any stipulations which they believe  to be necessary such as damages awarded to the petitioner.

Although there is a common excuse that ‘the marriage was gone’ long before any act of infidelity, it remains that this does not excuse  a respondent’s actions. As adultery remains a prominent reason for  divorce, it is important that aggrieved spouses are aware of the  subsequent steps to take.

Should you have any queries regarding divorce matters,  please do not hesitate to contact Piya via email at info@piyalawchambers.com or WhatsApp +60125325660