Adultery must be a voluntary sexual intercourse occurred between a married person and a third party, and generally sexual intercourse is defined as penetration of a women’s vagina by a man’s penis. This means that same-sex infidelity may not qualify as “adultery”. However, the petitioner could still claim that under “unreasonable behaviour” ground.
The petitioner must also show it is intolerable to reside with the respondent committing the adultery, and there is a time limit called “the 6 months rule” - if the parties reside together for more than 6 months following the discovery of the adultery, the petitioner cannot claim that they considered it to be “intolerable to reside” with the respondent in court.
Burden and Standard of Proof
Most of the time, adultery is proved by confession evidence and statement of admission. It is advisable to keep some sort of evidence as to the confession made. Even if the admission is made orally, details of the confession should be recorded or noted down when the memory of such confession is still fresh in mind. The burden of proof remains on the person alleging adultery and the adultery must be proved to the satisfaction of the court on the balance of probability (i.e. more likely than not). The degree of probabilities of proof depends on the subject matter and in proportion to the gravity of the allegation: if the allegation is more serious, the court would require stronger evidence to establish occurrence.
Direct and circumstantial evidence
Direct evidence of “caught in bed” adultery case is rare, and when it is not available, court could infer from circumstances which lead to the necessary conclusion that adultery must have been committed. These include:
- “hotel cases” where the respondent may be found to have booked a double room at the hotel, went there with a third party and the court ruled that the explanation was uncredible. Photo and video evidence may assist the court in its finding but love letters/messages may not be strong proof as there are uncertainties as to who wrote it or whether one did take actions per the letter/message;
- if a married person is proved to have contracted venereal diseases but not from the other spouse, this is prima facie evidence of adultery. Evidence of affirmation or affidavit may be required; and
if a child is born out of wedlock, this is also proof of the adultery. The court may direct for use of scientific DNA tests to determine the parentage. The child registered under the name of one of the spouses with another person by an entry in the register of births or any proof of birth is also prima facie evidence of adultery, unless the presumption that the party is the father/mother of that child is rebutted by proof on a balance of probabilities.