As set out in Section 54(1)(a) of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”), adultery and intolerability are amongst the provided alleged facts on proof of breakdown of marriage under the LRA. The Section spells out as below:
[1] That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
There are two limbs of the abovementioned fact. The petitioner in alleging this fact must prove that the respondent had committed adultery and secondly, that the petitioner finds it intolerable to live with the respondent.
Adultery is understood as a voluntary sexual intercourse between a married person and a person who is not their spouse.
In Sapsford v Sapsford and Furtado [1954] 2 All ER 373, it is provided that adultery is committed where there is mutual sexual intercourse, which need not amount to full penetration providing both the man and the woman play what may be described as their normal role. Mere masturbation of the one by the other does not come within the ambit of mutual sexual intercourse.
For this fact, it must be noted that the petitioner does not only need to prove that the respondent had committed adultery, but it also must be proven that the petitioner finds it intolerable to live with the respondent.
The Test for Intolerability
This criteria appears to be decided by a subjective approach. Under the English law, to determine whether or not petitioner finds it intolerable to live with the respondent, a subjective test must be used.
In ‘Rayden on Divorce’ by William Rayden, it is noted that:
“The wording of the sub-section indicates that prima facie the approach is a subjective one…as between this petitioner and this respondent, for it is what ‘the petitioner finds’ that is the primary consideration.”
This particular paragraph had been referred to by Lloyd Jones J in Goodrich v Goodrich [1971] 2 All ER 1340.
Therefore, it is clear that the emphasis in proving intolerability must be given to what the petitioner finds intolerable.
Must the intolerability be caused by the adultery?
In Clearly v Cleary [1974] 1 All ER, the Court of Appeal held that the statute must be interpreted literally and the petitioner may, therefore, rely not only on the adultery but also on any other matter show that further cohabitation would be intolerable to the petitioner.
Hence, the two phrases of ‘the respondent has committed adultery’ and ‘the petitioner finds it intolerable to live with the respondent’ are separate and independent from each other. The intolerability need not be the direct result of the adultery.
Like in the Cleary v Cleary above, the husband had took the wife back after she committed adultery, but she continued to correspond with the man who is not her husband, went out at night and finally, left him to live with her mother. It was held that the marriage had been irretrievably broken down notwithstanding the fact that he found it intolerable to live with her not on the account of her adultery but on account of her subsequent acts.
The case of Goodrich v Goodrich (supra) had provided as below:
“…it is submitted that the phrases are, in context, independent of one another”
Therefore, even though both limbs must be proven in order to establish this fact, the second limb of intolerability need not be proven to be caused by the adultery committed by the respondent.
Standard of proof of adultery
Even though, in the context of non-Muslim marriages, adultery is not a crime per se, it is trite that the standard of proof in establishing adultery is beyond reasonable doubt.
In Wee Ah Hock v Chia Chit Neo & Anor [1964] MLJ 217, it is provided as below:
“An allegation of adultery must be proved beyond reasonable doubt. 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; where the evidence is entirely circumstantial the court will not draw the inference of guilt unless the facts relied on are not reasonably capable of any other explanation.”
The onus is proving the fact beyond reasonable doubt is clearly on the petitioner who is alleging the adultery. In Wee Hock Guan v Chia Chit Neo & Anor [1964] 1 MLJ 217, Winslow J provided that:
“It is well established that an allegation of this nature must be proved to the satisfaction of the court beyond reasonable doubt and that the onus of so satisfying the court in this case rests upon the petitioner.”
Winslow J further provided 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; where the evidence is entirely circumstantial the Court will not draw the inference of guilt unless the facts relied on are not reasonably capable of any other explanation”
However, even though the standard of proving adultery is really high, that is beyond reasonable doubt, this does not mean that the petitioner must provide direct evidence of adultery. The Court in Yew Yin Lai v Teo Meng Hai & Anor [2012] MLJU 1456, Halijah Abbas J had provided that:
“It would be unreasonable to expect direct evidence of adultery. Normally the matrimonial offence of adultery is expected to be established by circumstantial evidence, but in that event the circumstances must be such as lead to the necessary conclusion that adultery was committed by the spouse concerned. On the other hand it would not be possible to lay down what circumstances would be sufficient to establish adultery, because circumstances may be diversified by the situation and character of the parties, by the state of general manners and by many other incidental circumstances, apparently slight and delicate in themselves, but they may have important bearing on the particular case.”
Halijah Abbas J in the case above had summarised that adultery is generally proved by presumptive proof based upon:
- circumstantial evidence;
- evidence of non-access and birth of children (in allegations of adultery against women);
- contracting venereal disease from external sources; and
- confessions and admissions by parties themselves.
Conclusion
In conclusion, if you are trying to initiate a divorce petition against your spouse on the fact that your spouse has committed adultery and you find it intolerable to live with him or her, the onus is in you to prove the adultery beyond reasonable doubt.
However, the intolerability need not be caused by the adultery per se.
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