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Article by listed attorney: Fawzia Khan

The Supreme Court of Appeal’s 's (SCA’s) ruling in September 2014, in the case of RH v DE 594/2013, which abolished adultery, has been taken to the Constitutional Court by the aggrieved ex husband.

UPDATE: here is the judgement of the Consitutional Court on 19 June 2015

Since September 2014, the right to claim damages for the of alienation of affection suffered by an ex spouse against the third party lover, for "contumelia" (insult) or “loss of comfort and society of the spouse”, now no longer exists. The aggrieved ex husband in the case of DE v RH took the SCA’s decision to the Constitutional Court. Both sides have submitted written argument and are now awaiting a date for the matter to be set down for argument. It will be interesting to see what the Constitutional Court rules on the matter. Interestingly at the time of the judgment the SCA judges ruled that our constitution imposed a duty on the courts to develop the common law, "so as to promote the spirit, purpose and objectives of the Bill of Rights'.  The judges held that  “adultery has lost its social substratum” and therefore had no place in our common law.

The scrapping of adultery from our common law has understandably been met with much disappointment from whose marriages have ended because of an adulterous relationship. Clearly they see it as being dealt a " double blow". First the indignity of losing the love and affection of the spouse to another and with the abolition of adultery, not being able to claim any damages from the lover. The reality is that adultery has already been decriminalized in many countries, including parts of Europe, certain States in the US, China, and more recently in February 2015, South Korea announced that adultery has been abolished from it's statute books. This is seen to be in keeping with the changes in societal behaviour and morals.

At the time of the SCA’s ruling, some lawyers in Zimbabwe accused South Africa of moving from "extreme conservatism during apartheid to extreme liberalism post apartheid where it "key human norms such as sanctity of marriage have been down graded. According to the laws in Zimbabwe adultery remains a civil wrong.  

I doubt however that the abolition of adultery will encourage more adulterous relationships. These types of relationships are often not pre meditated. It's therefore unlikely to have any significant and meaningful deterrence to parties wanting to embark on such a relationship. I think if the marriage is stable and solid one, it's not likely that a spouse will be willing to risk losing that stability by engaging in an adulterous relationship. 

From a “legal” perspective, adultery itself plays no real role in the actual divorce process, even though it remains one of the most compelling reasons for a marriage breaking down. This is because we have the no-fault divorce system in place. There’s no need to prove that adultery, or indeed any fault was committed by either party, which caused the marriage to fail.  

Prior to 25 September 2014, the aggrieved ex-spouse could proceed with a claim in delict against the third party lover for damages he or she sustained because of an adulterous relationship committed by the other spouse and the third party. This claim targeted the third party who caused the break up- not at the spouse himself or herself.  Prior to the SCA's ruling, I often found that adultery played a key role during any negotiations or settlement discussions between divorcing clients facing this particular scenario. A spouse who was in an adulterous relationship was often willing to settle on terms less favourable to him or her, simply to avoid the threat of the lover being sued for alienation of affection. Since the abolition of adultery in September 2014, however I have noticed a distinct reduction in how much the "guilty" spouse to prepared to give to the "aggrieved" spouse when it comes to a division of assets of the parties and monetary awards etc. I think that trend is very likely to continue into the future.

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