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And Then, There Were Three…The Law of Adultery in Malaysia

January 15th, 2009 · 6 Comments

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contributed by Leanne L. (Law student of University of Malaya) 

You have heard about it, seen it on your flat screen TVs, or splashed across (more often than not) tabloid papers. You can feel sympathy, rage, disgust, or even empathy— it does not change the fact that the issue of adultery is here to stay, and it is in fact growing relentlessly. So what we have today is a staggering amount of websites (last I checked there were 3,020,000 entries) and columnists offering tips on recognizing signs of adultery, why some seemingly faithful spouses were in fact being unfaithful, so on and so forth.

There are a number of definitions for adultery; among others:

• voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband

                                                        Merriam-Webster Online Dictionary. 2008.

• The unfaithfulness of a married person to the marriage bed; sexual intercourse by a married man with another than his wife, or voluntary sexual intercourse by a married woman with another than her husband.

                                                         Webster’s Revised Unabridged Dictionary. MICRA, Inc.

• extramarital sex that willfully and maliciously interferes with marriage relations; “adultery is often cited as grounds for divorce”

                                                           WordNet® 3.0. Princeton University.

In short, for adultery to be made out there must have been voluntary or consensual sexual intercourse between two parties who are not married to one another.

Lord Penzance succinctly surmised the concept of marriage in the case of Hyde v Hyde: “I conceive that marriage […] be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

Naturally, when one party has breached the sanctity of a marriage by bringing in a third party into it (does the phrase ‘three is a crowd’ ring a bell?), divorce proceedings would, more often than not, ensue.

The modern law of divorce works as a tool to terminate a dead marriage as painlessly as possible, but it does not mean that divorce can be easily obtained.

There are strict procedures to be followed and stringent requirements to be fulfilled before a divorce decree is granted. There’s the mandatory process of meeting with and being certified by the conciliatory body regarding the breakdown of marriage, for one.

Then again, hell hath no fury like a woman scorned, right? (Forgive me; I do not know the ‘man’ equivalent to this proverb.)

In Malaysia, we do have a statutory provision to grant a divorce on the ground of breakdown of marriage under section 53 of the Law Reform (Marriage and Divorce) Act 1976, with a list of facts leading to said breakdown under section 54; the specific provision regarding adultery is section 54(1)(a) of the Act, where the divorce petitioner can apply for a divorce because the other spouse has committed adultery and the petitioner finds it intolerable to live with the latter.

To prove adultery, the persons committing it need not necessarily be caught red-handed. The standard of proof required when there is an allegation of adultery used to be beyond reasonable doubt, especially considering the times when such act was regarded as a matrimonial offence.

Nowadays, where the emphasis is more on the fact that the marriage has irretrievably broken down than of the fact that one has committed a matrimonial offence, the society are more willing to view divorce as a solution than as a punishment for a wrong committed.

The modern approach of using the balance of probabilities is more favoured by the Malaysian courts, especially if, by using the old approach, other circumstantial factors would be deeply and negatively affected; for example, a child may be declared illegitimate but the mother had not committed adultery because adultery cannot be proven beyond reasonable doubt.

For a court to grant a divorce decree, the petitioner need not only prove the allegation of adultery, he or she must also show that he or she finds it intolerable to live with the respondent. To determine ‘intolerability’, the court would require some substantial evidence before it can be satisfied of the intolerability.

Also, in a divorce petition on the grounds of adultery, the adulterer or adulteress can be made co-respondent in the proceeding, according to section 58(1) of the same Act. If the court is satisfied that adultery between the respondent and the co-respondent has been proved, the petitioner is entitled to claim damages from both. In the case of Tan Wat Yan v Kong Chiew Meng & Anor, the wife had alleged adultery on the part of her husband, which had been going on for the last 7-8 years, and was seeking for a divorce. She also sought damages against the co-respondent. The allegation on adultery was not challenged since the respondent did have three children by the co-respondent.

Mokhtar Sidin J stated that he is satisfied that the petitioner did not condone the act of adultery and that she could not possibly continue living with the respondent, therefore the divorce was granted and damages were also ordered against the co-respondent.

To conclude, allow me to say this: married life has its ups and downs, and I’m sure that one or two little things would lead to some turmoil in that union. Based on findings from various studies, it doesn’t matter if you have been married for 20 months or 20 years, no one is really immune to extra-marital affairs. However, I do not think that we should be judgmental or presumptuous regarding the others’ state of marital affairs, since matter of the heart is purely subjective and not ruled by a subsisting standard. Incidentally, as I was typing this, I could not stop my mind’s eye from recalling the look on the face of the world’s most photographed woman as she confessed on national television that, “[sic] there were three of us in this marriage, and it was a bit crowded…”

Bibliography
• Merriam-Webster Online. 9 October 2008

• Webster’s Revised Unabridged Dictionary. MICRA, Inc. 09 Oct. 2008. .

• WordNet® 3.0. Princeton University. 09 Oct. 2008. .

• “Adultery seen on the rise in Malaysia”, 09 Oct. 2008. http://www.breitbart.com/article.php?id=070723075857.9mk4ff4q&show_article=1&lst=1

• “Woman, the new man” , 09 Oct. 2008. http://thestar.com.my/lifestyle/story.asp?file=/2007/12/16/lifefocus/19764669&sec=lifefocus

• “Affairs/Marital infidelities”, 09 Oct. 2008. http://www.focusonthefamily.com/lifechallenges/relationship_challenges/affairs_marital_infidelity.aspx

• “Adultery in Divorce”, 09 Oct. 2008. http://www.divorceinfo.com/adultery.htm

• Prof. Ahmad Ibrahim, Family Law In Malaysia,(3rd ed.) Singapore, MLJ, 1997.

• Mimi Kamariah Majid, Family Law In Malaysia, Kuala Lumpur, Butterworths, 1999.

• Tan Cheng Han, Matrimonial Law In Singapore and Malaysia, Singapore, Butterworths, 1994.

Tags: -==Legal Tips==- · Family Law

6 responses so far ↓

  • 1 Mythicizer // Jan 28, 2009 at 5:27 pm

    Eddie.. in my forum, we have discussed about this topic b4.. Well, so if anyone wants to read in mandarin, perhaps this can help them..

    http://www.12chat.net/viewthread.php?tid=2814&extra=page%3D2

  • 2 Eddie Law // Feb 9, 2009 at 4:20 pm

    Hi Mythicizer – thank you for the information.

  • 3 Green DRagon // Mar 27, 2009 at 10:37 am

    The case in question is opposed by Chinese Customary rules. A Women is supposed to bear Children to prolong the family name. In case of Mdm Tan (I think she is deceased already), she had previous case of sexual promiscuity and is actually barren.

    Legal precedents can be a fool and make us all fools.

    Lawyers and such are always a victim of such foolishness.

    Green DRagon

  • 4 Green DRagon // Mar 27, 2009 at 10:39 am

    A non contest just meant that the husband has been a GENTLEMAN in maintaining a marriage, providing for Mdm. Tan when she could be divorsed for non fulfilment of her duties as wife.

    Don’t let the courts be used a instrument of evil!

    Green DRagon

  • 5 Yvonne Young // Apr 10, 2009 at 6:09 am

    The standard of proof on balance of probabilities may cause some concern. Where there are children borne by the co-respondent as in the case of Tan Wat Yan, then the court will have no problem in awarding the petitioner.

    However, a lower standard of proof means circumstantial evidence suffice. As hell hath no fury like a man/woman scorned, there is no requirement for the petitioner to produce more concrete evidence. For example, a working woman made an appointment with a client solely for business purpose in a hotel. An over- suspicious husband may take a photo of the woman and her client walking out of the hotel.
    Will this evidence suffice?

  • 6 Green DRagon // Apr 13, 2009 at 10:36 am

    In the case of Mdm. Tan, she actually adopted a child. She, herself is barren. (Actual fact)

    A Non Contest, should always be taken “kindly” by the court. Courts should not be used to “inflict pain” but to serve to “pacify”. In this case the women found an avenue to satisfy her “unhappiness” but a lot of money was wasted by both parties in this “foolish adventure”.

    Green DRagon

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