Types of Evidences You Need to Sue for Adultery and Divorce in Malaysia
Adultery is the voluntary sexual intercourse between a man and a woman who are not married to each other but one of them is at least a married person at the time of the act. In other words, any sexual contact short of sexual intercourse is not adultery. So what are the types of evidences you need to sue for adultery and divorce in Malaysia?
The petitioner must show that the physical act or sexual intercourse had resulted in the breakdown of the marriage and not adultery of the mind. Thus, flirting or holding of hands does not constitute adultery although such an act may be deemed as unfaithful to the spouse.
It is well established in Malaysia that an allegation of this nature must be proved to the satisfaction of the court beyond reasonable doubt and that the burden of so satisfying the court in this case rests upon the petitioner. For instance, in the Malaysian case law of Dr Gurmail Kaur a/p Sadhu Singh v Dr Teh Seong Peng & Anor,  11 MLJ 843, the petitioner wife’s oral evidence was accepted by the court that the respondent husband and the adulteress (the co-respondent) had an adulterous affair by witnessing them on the same bed in the matrimonial house supported with the prima facie evidence of adultery by the entry of the respondent husband’s name on the register of births as the father of the child that the co-respondent had delivered.
As such, bald statements and allegations cannot be used as evidence of adultery. Mere possibility is not enough. It has to be proved that there was no other explanation of the conduct of the party other than that there was indeed an affair.
However, an adulterous act may be inferred from the combination of strong circumstantial evidence that leads to no other conclusion except that there was adultery. For example, in another case of Yew Yin Lai v Teo Meng Hai & Anor,  8 MLJ 787, the judge accepted that the combination of the facts such as: regular visits by the respondent husband and the co-respondent to the baby-sitter’s house to visit the co-respondent’s daughter, the discovery of respondent husband and the co-respondent in a closed room, the respondent husband buying several movable and immovable properties for the co-respondent without satisfactory justifications and several other suspicious conducts to be sufficient to prove adultery beyond reasonable doubt.
Also, it is important to note under section 54(1)(a) of the Law Reform (Marriage and Divorce) Act 1976, the commission of adultery per se is not a sufficient ground for divorce. It must also be further proven that such conduct is deemed intolerable for the petitioner to live with the respondent anymore. Therefore, by forgiving and continued living with the respondent after discovery of the affair, the court might draw the inference that the petitioner has condoned the act of adultery. In this case, chances are the petitioner would lose his/her right of complaint of such misconduct. This is because the burden of proving the adultery having caused the breakdown of the marriage rests on the petitioner and has failed to be discharged.
So what are the types of evidences that might be useful if one wishes to sue for adultery and divorce in Malaysia? Examples of strong evidences can be admission of guilt or proof of birth of child by the respondent and co-respondent (adulterer/adulteress).
In the event if no direct evidences can be obtained to prove adultery, the Court may also consider the following evidences collectively such as flirtatious messages, vacations photos, intimacy photos, proofs that show parties in hotel room together among others and the Court must be satisfied that there is no reasonable explanation for the immoral acts.
All in all, before a claim of adultery can be established, the petitioner must gather as much information as well as any direct or circumstantial proofs in order to support his/her allegation.
This article is contributed by Max Tam & Siow Pey Yiaw.
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