The discovery of a spouse’s infidelity can be one of the most painful experiences in a marriage. Besides the emotional impact, many individuals immediately begin asking legal questions. Can adultery be used as a ground for divorce? Will the unfaithful spouse lose custody of the children? Does adultery affect maintenance? Can legal action be taken against the third party?
There are many misconceptions surrounding adultery under Malaysian law. Contrary to popular belief, adultery does not automatically determine the outcome of a divorce or ancillary matters such as child custody and maintenance. This article explains how adultery is treated under Malaysian law and clarifies some of the common misunderstandings.
What Is Adultery?
Legally speaking, adultery refers to voluntary sexual intercourse between a married person and someone other than his or her spouse. Many people believe that emotional affairs, flirtatious conversations, intimate text messages or spending time alone with another person automatically amount to adultery. While such conduct may understandably cause a breakdown in trust and may contribute to the collapse of a marriage, it does not necessarily amount to adultery in law. This distinction is important because allegations of adultery carry legal consequences and must be supported by evidence.
Is Adultery a Ground for Divorce?
Yes. For non-Muslim marriages, divorce is governed by the Law Reform (Marriage and Divorce) Act 1976. Section 54 of the Act provides that a marriage may be dissolved where it has irretrievably broken down. This means that adultery is not simply about proving that an affair occurred. The spouse relying on adultery must also satisfy the Court that it has become intolerable for him or her to continue living with the other spouse. Every case is assessed on its own facts.
How Is Adultery Proven?
One of the biggest misconceptions is that adultery can only be proven if someone personally witnessed the act. In reality, direct evidence is rarely available. The Courts frequently rely on circumstantial evidence, provided that the evidence when viewed as a whole, points towards the conclusion that adultery has occurred. Depending on the circumstances, evidence may include:
- Hotel booking records;
- Travel records showing both individuals travelling together;
- Photographs or video recordings;
- WhatsApp conversations or emails;
- Admissions made by either spouse; and
- Evidence showing both the opportunity and the likelihood of adultery.
No single piece of evidence automatically proves adultery. Instead, the Court evaluates all the surrounding circumstances before reaching its conclusion.
Does Adultery Affect Child Custody?
Many people believe that a parent who commits adultery automatically loses the right to custody of the children. This is incorrect. When deciding issues relating to custody, the Court’s paramount consideration is the welfare and best interests of the child. The Court will consider factors such as:
- the child’s emotional and physical needs;
- the ability of each parent to care for the child;
- the child’s education and welfare;
- the stability of each parent’s home environment; and
- where appropriate, the wishes of the child.
Unless the adulterous conduct directly affects the child’s welfare, adultery alone will not automatically prevent a parent from obtaining custody or access.
Does Adultery Affect Maintenance?
Again, the answer is not automatically. Maintenance is determined based on different legal principles. When considering maintenance, the Court primarily examines factors such as:
- the financial needs of the spouse or child;
- the paying party’s financial ability;
- the standard of living enjoyed during the marriage; and
- the overall circumstances of the parties.
Accordingly, a spouse does not automatically lose the right to maintenance simply because he or she committed adultery. Similarly, adultery does not automatically entitle the innocent spouse to receive higher maintenance.
Conclusion
Adultery is undoubtedly one of the most difficult issues a married couple can face. However, it is important to distinguish between the emotional impact of infidelity and its legal consequences. While adultery may be relied upon in divorce proceedings, it does not automatically determine issues relating to child custody, maintenance or the division of matrimonial assets. Each of these issues is governed by different legal principles and depends on the facts of the individual case.
