Adultery and its Burden of Proof

In Malaysia, infidelity remains one of the most common reasons cited by spouses seeking a divorce. Nonetheless, clients often hold unrealistic expectations of the pursuit of reliefs in Court arising from grounds of adultery. In Malaysia, not only adultery by itself is not a crime; even if the spouse had been physically intimate with another person, it must be established that sexual intercourse must have occurred in order for it to be deemed as adultery. Though, the person (the man) who entices away a woman who is married to someone else with intent to have sexual intercourse may still be punished with imprisonment and/or a fine under s.498 of the Penal Code in Malaysia.

According to the Collins English Dictionary, the legal definition of adultery is having sex with someone to whom they are not married. A common difficulty arising in pursuit of this ground for divorce lies with the burden of proof, whereby the burden on the part of the claimant is to prove beyond reasonable doubt that the adultery was committed. No doubt, this is indeed a high burden to achieve.

The question which begets to be answered is, what then would be the proof of such sexual activity? Does one have to show to the Court something graphic such as penetration?

Malaysian case law has shown that Courts usually rely upon the definition of adultery under the case of Wee Hock Guam v Chia Chit Neo & Anor [1964] 1 MLJ 217, which states that: "the evidence must go beyond establishing suspicion and opportunity to commit adultery, and must be such as to satisfy the Court that from the nature of things adultery must have been committed…" By legal definition of the word “must”, it basically means that evidence must be exceptionally concrete enough to prove adultery has been committed, i.e. akin to the standard of beyond reasonable doubt.

Because of the high standard of burden of proof, claimants have resorted to various ways to prove the commission of adultery and similarly, respondents have chosen to defend themselves by using unthinkable grounds. For example, in the case of Choo Hui Ling v Yeow Joen Ann [2013] 9 MLJ 788, the claimant attempted to prove the act by bringing together a lawyer as a witness and they found the respondent in bed with the alleged adulteress without clothes. In his defence, the husband Respondent claimed that the alleged adulteress was a prostitute and that he was engaging in the services of the prostitute for payment of RM600 each session. However, the Court found that the allegation or charge of adultery was not proven. The Court even went one step further to differentiate the act of adultery from the act of engagement of one-off prostitution services. In conclusion, the Court found that the Petitioner was unable to prove the commission of the act of adultery beyond reasonable doubt.

This decision may be disconcerting to some, especially when on one hand, the Court made a finding of the existence of engagement of prostitution services and yet on another hand regarded the burden of proof beyond reasonable doubt on the act of commission of adultery not satisfied. Nonetheless, it should be borne in mind that until and unless the claimant has discharged the onus on it to prove its case beyond reasonable doubt, the burden does not shift to the Respondent to disprove the claimant’s case (Johara Bi Binti Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139).

What is clear from the Malaysian case law is that although the commission of adultery may be proved by circumstantial evidence (which is difficult), the case can be made out stronger if there is a combination of evidence of the birth of illegitimate children, contraction of venereal diseases from external sources and admissions or confessions by the parties themselves.

It is therefore an extremely arduous task to prove adultery especially rarely would the claimant “catch” the guilty parties engaged in the adulterous act, and even when caught in the act, proving that the act had taken place would be an uphill battle.

Nonetheless, despite its high burden of proof, it has not stopped claimants from attempting to establish the element since adultery, if proven, entitles the innocent party to damages for adultery against the third party made as co-respondent under a petition for divorce pursuant to s.58(1) and (2) of the Law Reform (Marriage and Divorce) Act 1976. Furthermore, the Court may also take into account the adulterous conduct of the guilty party when assessing the amount of maintenance to be given to the innocent spouse pursuant to s.78 of the Law Reform (Marriage and Divorce) Act 1976.

Pursuant to s. 53 of the Law Reform (Marriage & Divorce) Act 1976, in a petition for divorce, the party petitioning for divorce just has to prove to the Court that the marriage has irretrievably broken down. Thereafter, under s. 54 of the Law Reform (Marriage & Divorce) Act 1976, the Court will then inquire into the facts alleged as causing or leading to the breakdown in the marriage, and in the conduct of its inquiry have regard for, among other facts, whether the guilty party committed adultery and that the claimant has found it intolerable to live with the guilty party.

In the process of the Court’s inquiry, the burden is placed upon the Claimant to produce proof of the commission of adultery. Once the Court is satisfied on the circumstances that it is just and reasonable to do so, it will then make a decree for dissolution of marriage subject to any other terms and conditions it may think fit to be attached together with the decree, and that would include damages against the guilty party for the commission of adultery.