FAMILY LAW – ADULTERY AND MAINTENANCE

Adultery is a legal ground for divorce. However, complication arises in proving adultery. This legal update covers proof and effect when adultery is proven as well as maintenance of wife and children.
How is adultery proven?
  • In law, adultery has to be proven on the balance of probabilities. Adultery is not a crime in Malaysia. You don’t have to prove adultery beyond reasonable doubt. However, due to the serious nature of the allegation, the courts have consistently required high degree of probability as proof.
  • The easiest way to prove adultery is by engaging private investigator. However, it is of crucial importance to pay attention to avoid being scammed by fake private investigators.
  • Private investigators can be called to give evidence in court and the report of their surveillance. Normally, these reports would contain photographs and videos of respondent and co-respondent co-habiting together. Circumstantial evidence of adultery suffices. There is no need to produce evidence of “living in adultery”. Circumstantial evidence of act of voluntary sexual intercourse is enough.
  • Next, it must also be proved that the adultery is the cause of the breakdown of marriage. This is where the other party can produce evidence to show that the marriage had crumbled long before adultery.
What happened after adultery is proven?
  • Besides being a legal ground for divorce i.e. breakdown of marriage, a petitioner may also claim damages for adultery against the co-respondent (the third party in layman terms) for damages under Section 59 of the Law Reform (Marriage & Divorce) Act 1976 (“LRA 1976”).
  • Damages awarded are compensatory in nature. Assessment would be on losses to restore the petitioner (and the children if any) to the life they would have enjoyed if the break-up had no occurred.
  • Damages would be monetary in nature. It is at the discretion of the court.
Can husband be ordered to pay maintenance of the wife?
  • Section 77 of the LRA 1976 gives power to the court to order a man to pay maintenance to his wife or former wife.
  • However, there is no automatic right for a woman to claim maintenance from her husband. The court will consider many of the following circumstances:
  • Means and needs of the parties in Section 78; and
  • Length of marriage.
  • In considering “means and needs of the parties”, the court will analyse the earnings of both the husband and wife. If the wife is a of an able-bodied person and has the means to support and maintain herself, little or no maintenance would be ordered. This is also termed as “self-sufficient” and “self-reliant”.
Can husband be ordered to pay maintenance of the child (if any)?
  • Yes. There is a duty for both parents to maintain and contribute to the maintenance of the child. The cost will be half for the child’s health, accommodation, clothing, food and education. This is provided in Section 92 of the LRA 1976.

Recent Post

INDUSTRIAL LAW – NAVIGATING THE LEGALITIES OF RETRENCHMENT

The dismissal of X by Company ABC, citing economic downturns, presents a compelling case on the complexities of employment termination and retrenchment legality. X contested his redundancy, claiming his role in property management and services was unaffected by the property development market’s challenges. This case probes into the legitimacy of retrenchment under economic duress and the employer’s duty to act in good faith, as guided by Section 20(3) of the Industrial Relations Act 1967. The burden rests on Company ABC to prove the necessity and genuineness of X’s redundancy, with failure to do so possibly leading to a verdict of unjustified termination. This scenario underscores the critical importance of evidence and intention in retrenchment cases, as reflected in precedents like Akilan a/l Subramanian v. Prima Awam (M) Sdn Bhd.

Read More »

PROPERTY LAW – LEGAL IMPLICATIONS OF SALE AND PURCHASE AGREEMENT BREACHES AND THE RIGHT TO OFFSET IN MALAYSIAN PROPERTY TRANSACTIONS

In the realm of Malaysian property transactions, the intricacies of Sale and Purchase Agreements (SPAs) and the enforcement of Liquidated Ascertained Damages (LAD) play pivotal roles in safeguarding the interests of both developers and purchasers. This article delves into the legal framework governing the rights and obligations of parties involved in property transactions, particularly focusing on the consequences of contractual breaches and the conditions under which a purchaser can exercise the right to offset against LAD. Through the examination of relevant case law and statutory provisions, we illuminate the legal pathways available for resolving disputes arising from the failure to adhere to the terms of SPAs, thereby offering insights into the equitable administration of justice in the context of Malaysian property law.

Read More »

WINDING-UP – OFFICIAL RECEIVER AND LIQUIDATOR (“ORL”)

In cases of compulsory winding up, the court would appoint a liquidator under s.478 of the Companies Act 2016 (“CA 2016”) to expeditiously recover and realise the assets of the wound-up company for the distribution of dividends to creditors and administer any outstanding matters involving………..

Read More »

JUDICIAL REVIEW – PROCEDURAL FAIRNESS AND LOCUS STANDI

This excerpt illuminates the foundational principles of judicial review as outlined in Order 53 of the Rules of Court 2012. It highlights the criteria for challenging public decisions on grounds of illegality, irrationality, or procedural impropriety. Central to the discussion is the question of timing in judicial review applications, particularly in cases of procedural unfairness. The practical scenario underscores the significance of a “decision” by the relevant authority as a prerequisite for locus standi, drawing insights from the case of Hisham bin Halim v Maya bt Ahmad Fuad & Ors [2023] 12 MLJ 714.

Read More »

CONTRACT LAW – CONTRACTUAL INTERPRETATION REMEDIES UNVEILED: DECIPHERING CONTRACTUAL CLAUSES AND LEGAL BALANCE

This legal updates explore the principles governing the interpretation of agreements, emphasizing the importance of clarity and unambiguity in contractual terms. It delves into a key issue involving restrictions on remedies for breach of contract, shedding light on the court’s commitment to upholding plain meanings. The illustrative scenario involving shareholders X and Y dissects a pertinent clause, showcasing the delicate balance between restricting remedies and ensuring fairness in legal proceedings.

Read More »
en_USEnglish
× How can I help you?