Media reports recently stated that Simon Cowell allegedly committed adultery with his friend Andrew Silverman’s wife Lauren Silverman, with whom The X Factor judge is expecting a baby.
In divorce papers filed in New York, which is a no-fault state when it comes to divorce Mr Silverman chose to go the fault route instead. A no-fault state means that spouses do not need a reason to divorce. Silverman is said to feel betrayed and he alleged adultery as a cause, and along with his future ex-wife listed Cowell as a third party. The affair reportedly came as a shock to Mr Silverman, who has filed for divorce citing ‘adultery’ as the main reason for the breakdown of the marriage and accusing his wife of subjecting him to ‘cruel and inhuman treatment. This means that if the matter goes to trial in a court, Cowell could be called to testify in a trial about his alleged relationship with Lauren Silverman and there might be DNA tests involved to officially determine paternity of the child. To join a third party as a second Defendant in divorce proceedings is discouraged by some lawyers usually because of the huge legal costs and the bitter fallout it causes between couples. Under US law Andrew Silverman is required to prove his wife’s infidelity even if she and Cowell admit to the affair. This means that Cowell will have to reveal evidence of his meetings with Lauren Silverman.
In South Africa the law in respect of adultery is different. In the US a claim against a third party for monetary compensation on account of the wrong committed is not possible, but in South Africa it still is, for how long still remains to be seen.
In a recent case in the High Court in Pretoria a Judge emphasised that marriage is a sacred institution and that instituting a claim for damages against a third party by an injured spouse resulting from adultery is still a possibility in our law. In the judgement the third party was ordered to pay R 75 000 to the husband for damages because the third party committed adultery with the husband’s wife.
Damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium (the right to associate as husband and wife). Compensation can be claimed for financial loss caused by the break-up of the marriage, as well as for the loss of affection. A court will consider the spouses’ financial and social situation, their moral reputation and the state of their relationship before the adultery was committed. When an innocent spouse’s behaviour was partly responsible for driving his/her partner into another person’s arms, the damages awarded will be considerably lower. Although our courts have started to view divorce as a ‘no fault consequence’, an innocent spouse may still bring an action for damages against a third party (the co-defendant) with whom adultery was committed. Such a claim can be brought even if divorce proceedings are not instituted against the guilty spouse. There are two grounds on which one can sue a third party:
adultery, which is the act of having sex with a married person; or
alienation of affection or enticement, which means paying attention to a married person with the intention of drawing that person away from his/her marriage.
A third party who was unaware that the other person was married at the time when the adultery was committed cannot be sued, as the above mentioned grounds are based on a deliberate interference with the marriage. It is not easy to successfully sue a third party for breaking up a marriage. One has to prove that the third party was directly responsible for the breakdown of the marriage, and this is somewhat difficult. Claims against a third party are usually only successful if one can prove that the marriage was still strong and healthy at the time of the affair. If the third party can prove that the marriage had already broken down, then he/she will probably succeed in his/her defence. If the third party behaved particularly callously towards the innocent spouse, for example if he/she openly enticed the wife/husband away from the other spouse, damages may be increased. It is debatable whether, in today’s day and age, there is still place for an action to sue a third party for adultery in South African law.
According to a press release issued by the infidelity site AshleyMadison.com the state of adultery in South Africa is that 82.6% of their male members having affairs are not really concerned about being caught by their wife, which is a shocking revelation since marriage is supposed to be a sacred institution, I mean why get married then in the first place? The website with the tagline “Life is short. Have an affair” has 12 million members worldwide. The website has seen a huge surge in memberships in South Africa with one new member joining every three minutes. The statistics also show that cheating is more of a men’s game. 62 % of AshleyMadison.com members are male and female cheaters are making up just under 40%. When it comes to age, men aged 30 to 39 are most likely to cheat, while 18 to 29-year-old women make up the largest group of females who have signed up. Men according to the statistics are apparently far more willing to cheat with a variety of women, with the average affair partners per man being four, while women’s average is two.
In Johannesburg, over 59.7% of members have signed up for a short-term fling, apparently because their fast-paced lifestyles mean they can only manage quick encounters. Johannesburg has also been called the most popular city for women looking to cheat with 36.2% of female members logging on in Johannesburg for some love outside of marriage. Cape Town is the city where more than 55.3% are looking for an “Anything Goes” affair, while Durban is the city where members are the most steady it seems, at least when it comes to their affairs: 33.4% are looking for a “Long-Term” lover.
The website reports that it has gained over 163 000 South African members within its first year of operation in the country. In a survey of 4,392 South African members it was found that the top five cheating occupations amongst men were: 1. Financial Industry, 2. IT, 3. Physicians, 4. Lawyers and 5. Entrepreneurs and amongst women, 1. Education, 2. Lawyers, 3. Finance/Accounting, 4. Administration and 5. Stay-at-Home Mother.
The sad reality is that whatever the cause, divorce will remain a part of society. Behind the majority of these statistics is a life, a child, tomorrow an adult, still coping with the emotions brought on by the divorce. Divorce and Separation is a invariably traumatic for all concerned, but especially for the 20 000 children affected by divorce each year in South Africa.
Compiled by Bertus Preller
Family Law and Divorce Attorney and author of Everyone’s Guide to Divorce and Separation – Random House.