Article by listed attorney: Fawzia Khan
Even though we have a ‘no fault” divorce system in place in South Africa, (meaning a person no longer needs to prove fault such as adultery, in order to get divorced), the reality remains however that adultery continues to be one of the key reasons why marriages break up.
Adultery has been decriminalized in many parts of the world, such as parts of Europe, America, South Africa and China, but is often cited as a ground for the breakdown of a marriage. In some Asian countries including, India, Korea, Philippines and Taiwan and in Muslim countries, adultery remains a crime, with various types of sanctions imposed on the guilty parties. In Islam a person is precluded from making such allegations of adultery without having substantial and compelling evidence in support thereof. According to Islamic jurisprudence, the standard of proof is extremely high and an accuser must produce eyewitnesses, each of whom should have a good reputation for truthfulness and honesty.
Up until 25 September 2014, an aggrieved divorcing spouse could consider suing the third party lover who caused the marriage to breakdown. The “guilty” spouse’s lover (third party) could be sued in delict for damages on the basis that the third party committed adultery with and alienated the affections of the other spouse. The aggrieved spouse would claim damages based on ‘contumelia’, (insult suffered) and ‘loss of consortium’ which is the loss of the society and comfort of a spouse. One would have to prove that the marriage a good one and the third party enticed away the affections of the guilty spouse and committed adultery with that person. The damages would be based on suffering injury to one’s name, dignity, reputation, feelings and mental tranquility. Needless to say this was not an easy claim to prove, especially if there were cracks in the relationship before the third party entered into their lives. Nevertheless in my years of practice, I have come across several of such ‘alienation of affection’ cases where the aggrieved ex-spouse successfully sued the lover and was awarded monetary compensation, albeit far less than what was claimed.
On 25 September 2014, legal history was made when the Supreme Court of Appeal (SCA) ruled that one could no longer claim compensation for damages as a result of adultery. Adultery has now been abolished. In the case of RH v DE, a man “D” sued his wife’s lover “R”, for alienating his wife’s affection and being in an adulterous relationship with her. The High Court earlier found in favour of the ex husband and ordered the lover R to pay R75 000,00 as compensation. “R” however denied that he was responsible for the breakup and took the case on appeal to the SCA.
The SCA requested both counsels to address them on the issues of whether adultery should remain part of the law, giving considerations to our prevailing societal morals, the Constitution and the concept of marriage as an institution. In delivering his judgment, Judge Brand, together with 4 other judges who also concurred, ruled, “the time for the abolition of adultery has come”.
The Judge ruled that Section 39(2) of the Constitution imposes the duty on the courts to develop the common law so as to promote the spirit, purport and objectives of the Bill of Rights. It held that the courts should adapt the common law so that it reflects “the changing social, moral and economic fabric of society”. “Adultery has lost its social substratum”. He said it was doubtful whether these adultery claims had any deterrent effects on society as a whole and held that if a marriage is good one, it’s unlikely that it could be broken up by third party. Judge Brand said that many other countries have abolished adultery and that the time has come for our law to take into account the changing “mores” of our society. The SCA also found that it was not in the best interests of young children of the marriage to be subjected to harmful publicity and emotional trauma that unfolds in adultery actions. The court found that the ex- husband was motivated by considerations of anger at his wife for the breakup of their marriage. “So, instead of being moved by a need for solace and closure, the action was driven by a negative and destructive craving for revenge”.
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