Tuesday, December 14, 2010

Is married man or woman has sex with gay or bi-sexual is an adultery offense? Is a basis for divorce?

Can you provide your comment on infidelity case? case study: a married man or woman has sexual intercourse with same sex, is Cambodian law considered this case as infidelity or not? can his/her married wife/husband divorce based this reason?
តើលោកអ្នកអាចផ្តល់យោបល់លើករណីនៃអំពើផិតក្បត់បានដែរទេ?  ករណីសិក្សា បើនារី រឺបុរសជាប្តីមានសាហាយស្មន់ជាមួយមនុស្សភេទដូចគ្នា  តើច្បាប់ខ្មែរចាត់ទុកជាអំពើផិតក្បត់ដែររឺទេ?  តើប្រពន្ធរឺប្តីអាចយកមូលហេតុនោះមកធ្វើការលែងលះបានដែររឺទេ? យើងរងចាំនូវមតិយោបល់របស់របស់លោក លោកស្រី ចំពោះបញ្ហានេះ៕​
I would like to copy from the comments of people to put there: 
Anwer from Law Student at RULE: សំនួរសួរថា តើការផិតក្បត់ដែលប្រព្រឹត្តជាមួយភេទ ដូចគ្នារវាងសហព័ទ្ធណាមួយ អាចជាមូល ហេតុនៃការលែងលះគ្នាបានដែររឺទេ?
តាមមាត្រា ៩៧៨ កថាខណ្ឌទី១ នៃក្រមរដ្ឋប្បវេណីឆ្នាំ ២០០៧ ចែងថាៈ
១. ប្តី ឬ ប្រព័ន្ធ អាចដាក់ពាក្យបណ្តឹងលែងលះគ្នាបាន តែករណីដែលបានកំណត់ដូចខា...ងក្រោមនេះ៖
ក. បើបានប្រព្រឹត្តអំពើផិត ទៅលើសហព័ទ្ធ។ (…)
តាមមាត្រា ៣៩នៃច្បាប់ស្តីពីអាពាហ៍ពិពាហ៍និងគ្រួសារ ឆ្នាំ១៩៨៩ ចែងថាៈ
ប្តី ឬ ប្រព័ន្ធ អាចប្តឹងសុំលែងលះគ្នាបាន កាលបើមានមូលហេតុគ្រប់គ្រាន់បញ្ជាក់ថា ខ្លួនពុំអាច
មូលហេតុជាអាទិ៍ មានដូចខាងក្រោមនេះ ៈ
(...) ៣. មានចរិតផ្ទុយពីសីលធម៌ ឬ ប្រព្រឹត្តអនាចារ (...)។
យោងទៅតាមវិធាននៃច្បាប់ខាងលើ ក្នុងក្រមរដ្ឋប្បវេណី កថាខណ្ឌទី១ ចំណុច ក. បើបានប្រព្រឹត្តអំផិត ទៅលើសហព័ទ្ធ
ត្រង់ចំណុចនេះ មិនបានសំដៅថាជាការផិតរវាង បុរសនិងស្រ្តី ឬភេទដូចគ្នាឡើយ ដូច្នេះយើង
ទាញបានថា អំពើទាំងនោះជាអំពើផិតក្បត់ ។
មួយវិញទៀត អំពើផិតដែលប្រព្រឹត្តឡើងរវាងភេទដូចគ្នា អាចជាអំពើដែលប្រជាជនខ្មែរភាគ
ច្រើនគិតថា ជាអំពើអសីលធម៌ដែរ ជាអំពើមួយគួរឲ្យអាមាស ចំពោះសហព័ទ្ធម្ខាងទៀត មូលហេតុទាំងអស់នេះអាចឲ្យសហព័ទ្ធម្ខាង
ទៀត ធ្វើជាមូលហេតុនៃការលែងលះបាន។

Anonymous: In principle, in civil case, firstly, it should be looked at a special law other than general law. Because a special law stipulate clearly about the points for example, family law is derived from civil code. The family law states only the family matter. Civil code is a general law that governs the private sector. After we read specific law, and you find some points are still vague so we can go to see the general law.

Now I am going to topic: through reviewing family law 1989, it provides the ground for divorces. The either couple may file a complaint to court for divorces unless s/he shall have either reason which states in article 39 “A husband or wife may file a complaint for divorce if there are enough grounds which indicate that he or she cannot continue the conjugal cohabitation”. The grounds for divorce are:
3. immoral behavior, bad conduct: Does s/he made love with same sex is an immoral behavior or bad conduct? A person who is a bi-sexual person considered as immorally in society?
We consider the point three above, is it applied for case study? I think it’s not applied because the immorally behavior or bad conduct, it doesn’t define clearly in any law. However, we can see in Khmer dictionary mention about “morality” refers to person who respect old generation, have good conduct… and for “bad conduct” is referred to do something is wrongly as tradition….Therefore, we cannot take above category to apply the case study. However, we can find the reason for divorce in Civil Code. Please see article 978: Husband or wife can bring a suit for divorce only in the following cases:
a) If the other spouse has committed an act of infidelity;
b) ……….

What is infidelity? In Civil Code doesn’t define about the infidelity but law on monogamy law (this law was adopted by national assembly since October 2006) defined about this matter. In article 7 of Monogamy Law mention clearly “it shall be considered as infidelity when making love of a husband whose marriage has not yet been terminated, to a woman besides his wife, or make love between a wife who marriage has not yet been terminated with other man beside her husband.
It shall be considered of infidelity:
- A man whose marriage binding has not yet terminated and who has made loved with other woman
- A woman whose marriage binding has not yet terminated and who has made loved with other man”

Conclusion, the infidelity can be applied only a married husband/wife has sexual intercourse with opposite sex only. It doesn’t apply the same sex.

However, in Civil Code of Japan states in article 770 about the ground for divorce such as Act of unchastity, Malicious Desertion (mala fide desertion), Whereabouts unknown for more then 3 years, Severe mental illness with no possibility of recovery and Other serious causes of matrimonial difficulty. According to Book on Introduction to Family Law of Japan, published by Research and Training Institute of the Ministry of Justice of Japan, printed 1995, page 23 mentioned about Act of Unchasity refers to all acts that violate the faithful duties of a husband and wife. This is generally considered to be broader in scope than Adultery. Therefore, if husband/wife has something is not faithful, other couple can divorce.

In conclusion, through discussed above, the infidelity made by a married husband/wife with the same sex, the other couple cannot put their reason to divorce because in Monogamy Law mentioned about the definition of infidelity but s/he can find other reason to divorce as well such as the matrimonial relationship has otherwise broken down and there is no prospect of reconciliation and other thing which are stipulate in article 39 of family law, 1989 and civil code, article 978.
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