What Must You Prove to Get a Divorce Based on the Fact of Adultery?
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According to section 95(3)(a) of the Women’s Charter, a divorce can be granted, based on fact of adultery, for a marriage that is at least 3 years old. The plaintiff (i.e. the spouse filing for divorce) must prove:
- Their spouse has committed adultery; and
- The plaintiff finds it intolerable for him or her to live with their spouse
An adulterer cannot use evidence of his or her own adultery to file for divorce.
What Constitutes Adultery?
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Conventionally, voluntary extramarital sex constitutes adultery. It is immaterial whether the third-party is married as well.
It is also possible for extramarital homosexual affairs to constitute adultery.
What Evidence Will You Need in Order to Prove Adultery?
A plaintiff who files for divorce must adduce evidence proving that adultery has taken place. To do this, he or she may secure irrefutable proof, such as video evidence of the act.
Alternatively, proving that their spouse had the inclination and opportunity to commit adultery may also be adduced as evidence. For instance, this could include photographs of the adulterers in intimate poses, or the spending of time together in a hotel. To secure such photographic/video evidence and catch a cheating spouse in the act, it may be essential for the plaintiff to engage the services of a private investigator.
Alternatively, SMSes, email exchanges or phone conversations may also be used as evidence to prove the case. Additionally, the existence of a lovechild is a pivotal piece of indirect evidence of adultery. Ultimately, the best possible proof is a confession by the defendant confessing to his or her adultery, which amounts to direct evidence of adultery.
What if you’re unable to get sufficient evidence of adultery?
If the plaintiff is unable to obtain sufficient evidence to prove that their spouse has committed adultery, the plaintiff may still file for divorce on the basis of their spouse’s “unreasonable behaviour“, i.e. that their spouse has behaved in such a way that the plaintiff cannot be reasonably expected to live with them.
The fact of unreasonable behaviour is easier to prove than adultery for the purposes of getting a divorce as it is broader in scope and does not require the plaintiff to produce concrete evidence that their spouse has engaged in sexual relations with another party. Instead, the plaintiff may be able to base their spouse’s unreasonable behaviour on the spouse’s “improper associations” with another party.
When Must You File for Divorce Based on the Fact of Adultery by?
Also, pursuant to section 95(5)(b), if the innocent party continues to live together with the adulterer for more than 6 months without commencing divorce proceedings, the adultery can no longer be used as the basis for divorce.
Will You be Guaranteed Custody of Your Children If Your Spouse has Committed Adultery?
No. When deciding which spouse to award custody of the children to, the court does not look at any wrongdoing that either spouse may be guilty of – including whether one spouse had committed adultery. Instead, the court will base its decision on the sole consideration of what will be in the children’s best interests.
This principle also applies to the other ancillary matters in a divorce. In other words, the plaintiff is not guaranteed more maintenance or a higher proportion of the matrimonial assets just because their spouse has committed adultery.
Will Your Spouse be Made to Pay My Legal Fees If They Committed Adultery?
Generally, the adulterer is usually ordered to pay the plaintiff’s legal fees if they lose in the proceedings. They may also be ordered to pay the plaintiff’s costs of hiring the private investigator.
This article was first published by SLA and was republished on theAsianparent with permission.
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