THE TECHNICALITY OF PROOF OF ADULTERY IN DIVORCE PROCEEDINGS

Abstract

Adultery is the voluntary act of sexual intercourse committed by a spouse with a person of the opposite sex, not being the husband or wife, during the subsistence of the marriage.1 The objective of this paper is to examine the technicality of proof of adultery in divorce proceedings. The paper states that for a person to be said to have committed adultery, there must exist the element of free will which is fundamental to the commission of adultery. Therefore, where a spouse is involved in extra-marital sexual intercourse without his or her consent, the marital offence of adultery will not exist. The researcher adopted the doctrinal research method. The paper concludes that, adultery and intolerability can be used to prove that, a marriage has broken down irretrievably. Therefore, the court can hold that there is irretrievable breakdown of marriage, where the petitioner is able to prove to the satisfaction of the court that, since the marriage the respondent has committed adultery and that he or she find it intolerable to live with the respondent.