When love triangles turn legal, things get spicy. Welcome to the world of Malaysian divorce law, where the courtroom often feels like the season finale of a drama series, complete with betrayal, heartbreak, and surprise plot twists.
One of the most sensational grounds for divorce is adultery. And with that comes a co-star: the co-respondent. They're the alleged third party, i.e., the supposed lover, the homewrecker, the one whose name suddenly ends up in court papers. But are they truly culpable in the collapse of a marriage? Or just a convenient target for pain and blame?
Let’s peel back the layers of the law and the courtroom intrigue.
The Law Reform (Marriage and Divorce) Act 1976 (LRA 1976) provides the framework for non-Muslim divorces in Malaysia. Under Section 53 LRA 1976, either party to a marriage may file for divorce after two years of marriage, provided the relationship has “irretrievably broken down.” That irretrievable breakdown can be established through various grounds, including adultery.
Section 54(1)(a) of the LRA takes it further: a petitioner can claim that the respondent (i.e., their spouse) committed adultery and that the petitioner finds it intolerable to live with them. If this is proven, the court may grant a decree of divorce. And if the alleged adulterer or adulteress is identified? Then comes Section 58.
Section 58 of the LRA is where the real drama unfolds. It mandates that if the petitioner names a person as the other party in the adulterous act, that individual becomes a co-respondent, unless the court excuses them. The court may even direct the co-respondent to pay for the costs of the proceedings or award damages for adultery.
Now let’s talk about what constitutes adultery under Malaysian law. In GGC v CCC & Anor [2022] MLJU 327, the court relied on the classic English case of Clarkson v Clarkson [1930], defining adultery as voluntary sexual intercourse between a married person and someone who is not their spouse. It’s not about feelings or flirtation, it’s about the physical act. Emotional infidelity or romantic gestures might raise eyebrows, but they don’t meet the legal threshold.
But proving adultery isn’t always straightforward. Direct evidence is rare as people don’t often leave a paper trail or send out invitations to their secret affairs. So how do courts handle this?
They rely heavily on circumstantial evidence . In GGC, the court emphasized that adultery can be established by showing both disposition and opportunity. Disposition refers to behaviour suggesting a romantic or sexual relationship things like hand-holding, cuddling, or intimate body language. Opportunity means they had the chance such as like staying together in a private setting, late-night visits, or sharing a hotel room.
This evidentiary standard was put to the test in the case of Yew Yin Lai v Teo Meng Hai & Anor [2007] 5 CLJ 737, where the court highlighted that the inference of adultery arises from the combination of these two elements. If they act like lovers and have the time and place to be alone, it’s likely not innocent.
And if you want a case that brings it all to life like a Netflix plot, look no further than YAY v WHO & Anor [2023] MLJU 2024. In that case, the petitioner produced video evidence of the respondent and the co-respondent sharing an intimate dinner, with clear physical closeness and flirtatious mannerisms. Her head rested on his shoulder. Her outfit and demeanour suggested something more than friendly dining. It wasn’t a repeated affair. Just one night. But for the court, that was enough to find adultery proven.
Then there’s the bold and controversial Glaret Shirley a/p Sinnapan v Sivasankar a/l Kunchiraman & Anor [2023] 9 MLJ 772. The court took the view that while there were indicators of closeness between the respondent and co-respondent such as cohabitation and intimacy these did not conclusively point to adultery in the legal sense. The court reminded us that suspicion, even if strong, does not equal proof.
And this raises the ultimate question: is the co-respondent really a legitimate party to the proceedings or just a legal scapegoat?
On one hand, if the evidence points clearly to an affair, then the co-respondent bears responsibility for helping dismantle the marriage. But in many cases, they are targeted simply for existing in proximity to a fractured relationship. Sometimes, the marriage was already broken and the co-respondent becomes the unfortunate figure upon whom the petitioner unloads their pain, seeking both vengeance and compensation.
Let’s not forget: the co-respondent didn’t make vows to the petitioner. They didn’t promise fidelity or loyalty. That was the job of the spouse. Is it just, then, to drag them into court and demand they pay for someone else’s broken promise?
Section 58 gives power to the aggrieved but also the potential for misuse. In today’s age of social media , a single photo or video clip can be enough to spark a legal inferno. But should it?
While the legal framework upholds the right of an injured spouse to name and claim against a co-respondent, courts tread cautiously. Judicial prudence demands that findings of adultery must be supported by reliable, probative, and legally sound evidence. The standard of proof is not beyond reasonable doubt, but it is higher than mere speculation. Even with circumstantial evidence, the court must be convinced that the chain of facts leads to one logical conclusion: that adultery occurred.
Ultimately, adultery cases expose more than private affairs, they highlight how the law attempts to balance justice, morality, and human emotion. The co-respondent may be guilty of many things like bad judgment, poor timing, lust but whether they deserve legal punishment is another question.
So next time you find yourself swept off your feet by someone with a gold band on their finger, ask yourself: Is this just a fling or a fast pass to the witness stand? Because in Malaysia, being the “other person” isn’t just messy, it might cost you dearly. Love is messy. Law is messier. And in the courtroom of heartbreak, co-respondents don’t just get named, they get framed, blamed, and sometimes, shamed.
So love boldly, but lawyer up wisely. Because that candlelit dinner might just light the fuse on a full-blown legal scandal.
This article is prepared by Bharathi Subramaniam