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Damages for Adultery Unconstitutional

Before 19 June 2015 if you found yourself in a situation where your spouse was having an adulterous relationship with a third party, it was acceptable to institute legal proceedings against the adulterous third party for a delictual claim for damages suffered as a result of loss of insult, comfort and lastly, society of the spouse.

This is the situation that the parties in the recent Constitutional Court case of DE v RH 182/2014 found themselves in after DE came to the realisation that his former wife had an adulterous relationship with RH. DE instituted proceedings for a delictual claim against RH in the North Gauteng High Court of Pretoria. Damages were claimed under two headings, namely contumelia (insult) and loss of consortium (deprivation of the benefits of a family relationship due to injuries caused by another) as has become customary in matters of this kind.

The High Court awarded the claim for contumelia but found that not enough evidence was provided to prove that the adulterous relationship was the sole cause for the breakdown of the marriage. RH appealed these findings to the Supreme Court of Appeal. That Court recognised that our law currently allows for the claim of insult against a third party in the case of adultery. However, of its own accord, the Court raised the question of whether the claim should continue to exist. Thus, is the finding that adultery is no longer part of our law consistent with constitutional values and norms?

The Constitutional Court is of the view that the obligation rests on the spouses to protect and maintain their marriage relationship. The delictual claim is particularly invasive of, and violates the right to, privacy. That goes to the core of the private nature of an intimate relationship. Accordingly, there is a glaring inconsistency in the action for adultery in that it is available against the third party only and not against the adulterous spouse – who is clearly a co perpetrator and, being the party who has promised fidelity, is arguably more legally and morally culpable than the third party.

On 19 June 2015 the Constitutional Court handed down judgment concerning the continued existence of a spouse’s right to claim damages for adultery against a third party. The Court found that “the action derived from the actio iniuria based on adultery, which afforded the innocent spouse a claim for both contumelia and loss of consortium, is no longer wrongful in the sense that it attracts liability and is thus no longer available as part of our law.”

The Court referred to the Law Commission on Divorce which was responsible for the present Divorce Act, 70 of 1979 (introducing the no-fault system of divorce) that stated “adultery and malicious desertion are for the most part only the ultimate acts which indicate that a marriage has broken down. They are more often the effects of a marriage having broken down than the causes of breakdown”.

The Supreme Court of Appeal has found that delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained. This is not to suggest a judgment on the “possible moral blameworthiness” of conduct like adultery. Rather it is to ensure that adultery is not actionable at law (and that the adulterers are not legally liable for their actions).

Irrespective of the above finding by the Court, it is important to take note that adultery remains a reason for the breakdown of the marriage, but taking action against the adulterous party is now unconstitutional.

For assistance or more information please contact:

Juan Smuts or Vera Kruger

Divorce and Family Law  Department, Abrahams & Gross Attorneys

t.  021 422 1323      e.  juan@abgross.co.za | info@abgross.co.za

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