Marriage is not a bed of roses neither is it a bed of cactus (Tabitha Mwai, 2016). Nevertheless, some women will endure betrayal when their husbands commit adultery which can leave a deep scar in their hearts. In legal view, adultery means a voluntary sexual relationship between a married individual and someone who is not the individual's spouse.
So, what happens if a husband’s adultery has caused the wife an unbearable emotional pain to the extent that she cannot live with her husband’s unfaithfulness anymore? Of course, she can file for a divorce. The Law Reform (Marriage and Divorce) Act 1976 governs non-Muslim Marriages and divorces in Malaysia falls under the jurisdiction of Civil High Court. While Muslim marriage and divorces falls under the Shariah Court Jurisdiction and govern by Shariah law. However, in this article we will discuss on the issue of adultery relating to non-Muslims.
Divorce is best defined as a dissolution of a marriage contracted between a man and a woman, by the judgment of a court of competent jurisdiction, or by an act of the legislature. In order for a non-Muslim couple to file a divorce in Malaysia, the parties to the marriage must domicile in Malaysia at the time the petition is presented.
Divorce is a long and complicated process. Hence, it is very important for the parties involved to proof their claim with evidence. As in this case, the wife must be able to proof that her marriage has irretrievably broken for the court to be able to grant the divorce petition as provided under Section 54 (1)(a) of Law Reform (Marriage and Divorce) Act 1976 which states that “the respondent has committed adultery and the petitioner finds it intolerable to live with respondent”.
If a wife chooses to file a divorce petition against her husband due to adultery, there must be evidences to proof that her husband has an affair with another women. Mere assumption or jealousy will weaken the case. Among the evidence that can be tendered in order to strengthen the case is by proving that the husband and the mistress have children together due to the affair, when the wife had contracting venereal disease from external sources such as HIV when being faithful to her husband, or when the husband has confessed the he had an affair.3 A physical evidence such as intimate picture of the husband with another women or a screenshot of WhatsApp’s conversation will also be a good evidence to support your claim.
Moreover, the provision under Section 54 (1)(a) shows that adultery alone is an insufficient proof of marriage breakdown because it includes the petitioner's (wife's) unwillingness to live with the respondent (husband). Whether or not the wife find it intolerable to live with the husband is certainly a question of fact and the test is subjective.
Divorce petition filed, is that all? No, a wife can also claim damages against the husband’s mistress.
CLAIM OF DAMAGES AGAINST THE HUSBAND’S MISTRESS
Damages for adultery may be claimed against the co-respondent (mistress) by virtue of Section 58 of Law Reform (Marriage and Divorce) Act 1976. Subsection (1) states that “on a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.”
Similarly, if the court finds that the husband's adultery with the mistress is proven, the wife may be granted damages. Even if the divorce case is dismissed or adjourned, damages will still be awarded. Nonetheless, kindly note that the wife can only claim damages against the mistress and make her a co-respondent when divorce petition had been filed against the husband.
However, the mistress will be released from the case if she had no prior knowledge of the husband's marital status and believed in good faith that he was single or divorcee.5 Hence, it is crucial to proof that the mistress has knowledge of the husband’s marital status.
Adultery would cause an unbearable pain to the innocent party, and even though divorce should be the last resort to end the crisis, the long-life happiness of the innocent party matters. You decide your own happiness, whether you can remain with an unfaithful spouse or not. You can find a lawyer for further advise or to discuss your issue. People say time heals the wound and we hope that happiness may come along the way. A kind reminder, marriage is full of ups and downs, so the husband and wife should play their role to ensure that their marriage lasts till the end of their breath. Being loyal is not a choice, it is a must.