The Claim Based On Adultery

I have written about this before but recently came to realise that many people still didn’t know an innocent spouse cannot sue a third party for damages resulting from adultery. In this article I set out the courts reasoning for the change.

In the landmark case, an ex-husband, Mr DE, sued Mr RH for damages on the basis that Mr RH had an extra-marital affair with Mr DE’s former wife. His claim was based on the general remedy for the infringement of personality rights, claiming insult to his personality, and the loss of comfort and society from his spouse. Mr DE was successful with his claim for insult, but the Court found that the loss of comfort and society of his spouse could not be proved, as there was no proof that the adultery caused the breakup of the marriage.

Unhappy with the decision, Mr RH appealed to the Supreme Court of Appeal (SCA). The SCA decided that because of the changing values of our society, the claim based on adultery had become outdated and archaic, and could no longer be sustained, resulting in the Court abolishing it.

Mr DE, unhappy with the decision of the SCA, took the matter to the Constitutional Court. (CC) The CC had to decide whether a spouse had a claim against a third party and, if so, was there justification for the continued existence of the claim. Mr DE argued that the SCA did not consider his right to dignity, the right to freedom of religion, beliefs and opinion.

In weighing up the different constitutional rights the court said that, in an adultery claim, the intimate and private sexual relations of the parties are exposed, and thus privacy rights will be impacted upon.

Further it said that the non-adulterous spouse may have not committed any marital wrong, or may have caused the marital relationship to become unbearable. However, the non-adulterous spouse’s right to dignity is potentially infringed, and that it is a substantial intrusion into a person’s most intimate relationship without their consent.

The court reasoned that even if a spouse did nothing wrong, the reality is that some marriages just do not work out, and this does not make the rights of the adulterers irrelevant.

Even where the adulterers acted reprehensibly, their rights remain relevant. The adulterous spouse has a right, as a consenting adulterer, to have sexual relationships with a person of their choice.

The third party’s constitutional rights can’t be diminished just because he/she disrespected a marriage relationship. The court said that moral reprehensibility is immaterial, and as it is the spouses that agreed to be faithful and not the third party, the third-party rights cannot be disregarded as being irrelevant.

The CC also said they need to develop law in a manner that promotes the spirit, purport and objects of the Bill of Rights, in accordance with existing public policy, which reflects the changing social, moral and economic needs of society. Further, it said that the values of society need to be assessed to determine whether adultery can still be regarded as legally wrongful.

The court took into account the change in legal views i.e., illegitimate children now have full legal acceptance; adultery is no longer a criminal offence; adultery is no longer a ground for divorce but has merely been reduced to a guideline in determining whether the marriage has broken down irretrievably, and that society no longer views marriage as sacrosanct, and there are no longer extreme punitive measures befalling those who interfere with it.

The CC noted a spouse cannot expect the law to prop up a disintegrating marriage where the law had nothing to do with its disintegration. The court concluded that the third party’s adultery lacks wrongfulness.

The Chief Justice said that the law had a role in supporting marriage by helping to ensure that barriers to family life were removed, but “The rest is in the hands of the parties to the marriage.” he stated. “It continues to be the primary responsibility of the parties to maintain their marriage.” “For this reason, the continued existence of a claim for damages for adultery by the ‘innocent spouse’ adds nothing to the lifeblood of a solid and peaceful marriage,”

Thus, the Constitutional Court supported the decision of the Supreme Court of Appeal and dismissed the appeal with costs.

It is submitted that the impact of this judgment will put an end to a claim for harbouring and enticement, as well as the financial punishment under the banner of “serious misconduct” based on adultery when considering redistribution, forfeiture of benefits, or spousal maintenance orders.