Can I claim damages from the person my spouse had an affair with?

Discovering an affair is painful, and many people ask whether the third party can be made to answer for it. Under the civil divorce law in Malaysia, the answer is yes, but only within the divorce proceedings and only on proof.

Who is the co-respondent?

Under section 58(1) of the Law Reform (Marriage and Divorce) Act 1976 (LRA), where a divorce petition (or a spouse's answer) alleges adultery, the alleged adulterer or adulteress must be made a co-respondent, unless the court excuses this on special grounds. The co-respondent is served with the petition and can defend the allegation.

Can I claim damages?

Yes. The petition may include a prayer that the co-respondent be condemned in damages for the adultery (s.58(2)). This applies whether the petitioner is the husband or the wife.

• If, after the petitioner's evidence closes, the court finds there is not enough evidence against the co-respondent to require a reply, the co-respondent is discharged (s.58(3)(a)).
• If, at the end of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, it may award the petitioner such damages as it may think fit, but the award must not include any exemplary or punitive element (s.58(3)(b)).

In other words, the damages compensate the petitioner; they are not meant to punish the co-respondent.

Have a question about your own situation? Ask on WhatsApp

How is adultery proved?

Adultery is usually proved by circumstantial evidence, since direct evidence is rare. Examples include:

• messages, emails and social media content showing an intimate relationship;
• photographs, hotel bookings, travel records or shared accommodation;
• admissions by the spouse or the co-respondent; and
• the birth of a child outside the marriage.

Evidence must be obtained lawfully. Digital evidence such as screenshots must be properly produced under the Evidence Act 1950. See WhatsApp screenshots as evidence.

What else can the court order?

• Even if the divorce fails: the court may award damages against a co-respondent even if the petition against the respondent is dismissed or adjourned (s.59(1)).
• Trust for children: the court may direct that the damages, or part of them, be held by trustees for the benefit of the minor children, or towards maintenance (s.59(2)).
• Costs: in a husband's petition, where adultery is established, the court may order the co-respondent to pay costs, subject to limits in section 59(3). Costs generally are in the court's discretion.

What should I do first?

1. Preserve evidence lawfully, with dates and sources.
2. Identify the co-respondent by full name and address for service.
3. Decide the fact relied on: adultery and that you find it intolerable to live with your spouse (s.54(1)(a)).
4. Check the tribunal requirement before filing a single petition (s.106).
5. Avoid public accusations: do not post about the affair online, which can lead to a defamation claim.

Example

A wife discovers months of hotel receipts and messages between her husband and a colleague. She files a single petition alleging adultery, names the colleague as co-respondent, and prays for damages. At trial the evidence shows the relationship; the court awards compensatory damages and directs part of them to be held in trust for the two children.

Common mistakes

• Suing the third party in a separate civil action instead of within the divorce petition.
• Using unlawfully obtained evidence, such as hacking a phone.
• Expecting punitive damages.
• Confronting or shaming the co-respondent publicly.

When to speak to a lawyer

Speak to a lawyer before confronting anyone, to plan the evidence and the petition. See our family and divorce page; you can also contact us.

Frequently asked questions

Can a wife claim damages against another woman?

Yes. Section 58 refers to the alleged adulterer or adulteress, and the petitioner can be either spouse.

Does the co-respondent have to know my spouse was married?

Knowledge can be relevant to the assessment and to costs (s.59(3)), but the key question for damages is whether adultery is proved.

Can I claim damages without divorcing?

The LRA claim arises within divorce proceedings. Discuss your options with a lawyer before deciding.

Sources & fact check

Legal points in this article were checked against the primary sources below. The law can change; this is general information, not legal advice.

1. Law Reform (Marriage and Divorce) Act 1976 (Act 164), including sections 83, 88, 93, 95 and 96, AGC Laws of Malaysia
2. Evidence Act 1950 (Act 56), including section 114A, AGC Laws of Malaysia
3. Office of the Chief Registrar, Federal Court of Malaysia (Judiciary portal)

Fact-checked on 17 Oct 2026