Want to keep a mistress but cannot afford a costly divorce? Get your wife to agree to it~
This was the recent development in the divorce courts, which have set down an interesting precedent.
In a divorce proceeding before Justice Evrol Mariette Peters at the KL High Court, a wife was sought to divorce her husband citing Section 54(1)(a) of the Law Reform (Marriage and Divorce) Act 1976, that he has committed adultery and the petitioner finds it intolerable to live with the respondent.
The judge had rejected this on the grounds that a postnuptial agreement between the husband and wife, executed shortly after the marriage was registered, which allowed the husband to maintain a mistress during the subsistence of their marriage, is valid.
It is once again affirmed by the court that marital agreements, be it pre-nuptial or post-nuptial, are recognized under Section 56 of the Law Reform (Marriage and Divorce) Act 1976.
Since the wife had agreed via the postnuptial agreement to the husband’s keeping of a mistress, the courts ruled that the wife was not entitled to rely on Section 54(1)(a) of the 1976 Act to cite adultery as the cause of the breakdown of their marriage. This is because she can be construed to have tolerated her husband’s infidelity by consenting to the said postnuptial agreement.
Relying on the Indian Penal Code and Indian precedent, it was argued that any form of agreement sanctioning adultery was both illegal and immoral. But the court finds that in Malaysia, adultery does not constitute an illegal or criminal act among non-Muslims.
However, in spite of all this, a divorce was granted, and the judge made the decree nisi absolute with immediate effect. This is because while adultery did not serve as the cause for
the irretrievable breakdown of the marriage, the court is of the opinion that the marriage has indeed irretrievably broken down, and both parties “bore equal responsibility for the irretrievable breakdown of their marriage.”
The crux of the matter is that the irretrievable breakdown of a marriage is not solely contingent upon the establishment of adultery but “hinges crucially on whether such adultery has made it intolerable for the petitioner to cohabit with the respondent”.
It should be noted that while some sections of the postnuptial agreement were found to be unreasonable, the judge accepted the sections concerning the maintenance of a mistress as valid.
This would mean that if the case hinged solely upon adultery (for instance, in a case where a spouse is suing for adultery in order to to secure an award in damages against the homewrecker), the case would fail as the existence of a marital agreement where one party agrees to the other’s infidelity would be seen as acquiescence.