Adultery in South Africa, can I claim against a third party in a divorce


adultery

From a moral, ethical and religious perspective adultery is a sin and an act contrary to the basis of trust between married spouses and so is the behaviour of that infamous third party that broke up the marriage seen as immoral.  The purpose of this article is to revisit the law in respect of an aggrieved parties’ right to institute a claim for damages against the third party that was privy in the break-up of a marriage, i.e a claim against the mistress for monetary relief, to make good the hardship caused by the affair and the enticement of the spouse to leave the communal home in search of the greener pastures. The article is purely focussed on the law and not the public view or for that matter the religious viewpoint.

Our law has recognised in the past a claim for damages that can be instituted by an aggrieved spouse against a mistress. But what does our law say on the subject and is the law evolving away from the public view and religious views.

It is argued that the South African common law on which a Plaintiff’s claim is predicated for damages against a spouse who committed adultery in a marriage must be developed to promote the spirit, purport and objective of the Bill of Rights contained in Chapter 2 of the Constitution of South Africa, 1996 (“the Constitution”) and the interests of justice (under Section 39 (2) and section 173 of the Constitution).

According to the view expressed above it is argued that the time has come to develop the common law so as to remove or curtail claims for damages by a married person, utilising the actio iniuriarum, against a person involved in an intimate relationship with the married person’s spouse. The actio iniuriarum is used to claim for the impairment of one’s personality.  The purpose of this action is to compensate for the intentional injury to one’s mental integrity.

The argument against such a claim is that it breaches the right to human dignity (of the adulterer and mistress) under Section 10 of the Constitution, in that:

  1. The relationship and love between the adulterer and mistress is treated as morally reprehensible or without opprobrium.
  2. The mistress is held wholly responsible for damage caused to an aggrieved spouse by the other spouse’s marital infidelity; and
  3. The mistress is treated as an instrument, in that her human relationship with the adulterer is used as a means to express condemnation for the adulterer’s marital infidelity, and/or to generate sympathy for the aggrieved spouse.

It is further argued that such a claim breach the adulterer and mistress’s rights to equality and freedom from discrimination under Section 9 of the Constitution on basis of marital status, conscience and belief in that:

  1. No similar claim for damages is possible against a person who begins an intimate relationship with a man or a woman   involved in a long-term homosexual or heterosexual relationship, customary law marriage or religious union;
  2. The emotional consequences and loss for the aggrieved partner (i.e the person who learns of the infidelity of his or her partner with a third person) in all of the above relationships may be no more or less serious than a spouse in a marital relationship;
  3. The law accordingly differentiates between a person who enters a relationship with a married person; and a person who enters a relationship with a person in other types of committed, long-term relationships;
  4. The differentiation amounts to unfair discrimination on the basis of marital status and on the basis that it impairs, or has the potential to impair, the fundamental human dignity of an adulterer and a mistress.

It can further be argued that an adulterer and mistress’ right to privacy under Section 14 of the Constitution is violated in that it causes a public inquiry into the details of their relationship, how it formed and its strength.

Furthermore it seems that an adulterer and mistress’ rights to freedom of conscience, thought, belief and opinion under Section 15 of the Constitution, expression under Section 16 (1) of the Constitution and freedom of association under Section 18 of the Constitution also come into play for the following reasons:

  1. Burdening people such as the mistress with damages will have a detrimental effect on her ability to honestly and openly express her emotions and love for another person;
  2. The expression of emotions and love between the adulterer and mistress will be treated as morally reprehensible or tainted with moral opprobrium.

Therefore it seems that the common law must be developed in the interests of justice taking in to account the recognition that both parties contribute to the breakdown of the marriage relationship, which is inherent in the ground for divorce introduced in Section 4 of the Divorce Act 70 of 1979, namely “the irretrievable breakdown of the marriage”.

It is so that many foreign jurisdictions don’t tolerate such claims anymore and that there seems to be developments in South African case law to that effect. The historic view in our law that damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium seems to be outdated and time will tell on how our courts will develop the common law.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

www.divorceattorney.co.za

info@divorceattorney.co.za