The End To Claims Against The Adulterous Party

I recently read an article by my family law university lecturer, Professor Marita Carnelley, called “The impact of the abolition of the third party delictual claim for adultery by the Constitutional Court in DE v RH (CCT 182/14) [2015] ZACC 18”.

In her article she discusses the impact of the recent Constitutional Court (CC) judgement where the courts decided to abolish the third-party claim for adultery. The CC had to decide whether a non-adulterous spouse had a claim against an adulterous third party for insult to their self-esteem and loss of comfort and society of the adulterous spouse. In coming to their decision, the court looked at whether adultery was considered to be regarded as legally wrongful.

In the article she discusses how the courts looked at certain factors such as; how the criminal offence of adultery has been abolished; how adulterous children have been viewed from the past to now, having full legal acceptance; and the fact that adultery has been reduced to a mere guideline in determining whether the marriage has broken down irretrievably. The CC also took into account the world trend as predominantly moving towards the abolishment of the third-party claim for adultery. The court noted that a marriage is for the parties to maintain, not the law or the courts. Further the courts found that moral reprehensibility is immaterial when determining whether there should be a claim, and as it is the spouses that agreed to be faithful and not the third party.

The court took the view that they need to develop the law in accordance with the changing social, moral and economic fabric of society and does not merely preserve rules without taking into account existing social underpinnings. For this reason, the court ruled that the third party’s adultery lacks wrongfulness for purposes of a claim insult to their self-esteem and loss of comfort and society of the adulterous spouse and that public policy dictates that it is not reasonable to attach liability to it.

Carnelley went on to discuss the impact of this case; simply put “The non-adulterous civil law spouse is in the same position as any other person whose relationship ended in failure and will be limited to contractual and criminal remedies that will depend on the actions of the individual parties and will not merely be based on the adultery.” These would include defamation, insult, and unlawful publication of offensive or embarrassing material.

The impact this decision will have on considering adultery as a punitive factor in determining the financial consequences of a divorce, such as calculating a forfeiture of benefits claim, redistribution orders and/or spousal maintenance orders, interested me in particular.

Carnelley refers to recent case law, referring to a High Court case where it ruled “there was merit in the argument that a forfeiture order based on “substantial misconduct” was outdated and unconstitutional and that it punished a party by depriving them of benefits of a marriage in the absence of proof of how such conduct may have impacted on the estate.” In another case, it was held that “where the misconduct of one party is ‘gross and prolonged’ it may constitute a relevant factor, but it should not be unduly emphasized.”

In the current matter of DE v RH, the CC concluded that despite the current attitude of society and our courts, the husband’s misconduct could not be ignored in the determination of a redistribution order.

In concluding although the third-party claim for insult to self-esteem and loss of comfort and society of the adulterous spouse will no longer be available as it is out of date with modern societal morals and values. The impact of adultery as a factor in the consequences of a divorce is however uncertain.