Adultery: State butts out of the bedroom, lets adults get on with it

It all began when Mrs H fled the matrimonial home and her then husband, Mr DE, in March 2010 after years of serious problems including – evidence was led – physical assault and rape. Mrs H subsequently found love with Mr RH, which led to the husband suing his wife’s new lover for damages in the North Gauteng High Court. The aggrieved husband was seeking monetary compensation (R1 million) essentially for the “insult” of the “infidelity” as well as for the “loss of comfort and society of his spouse”.

While the legalese might evoke Victorian mores and scour the drama from the case, its significance is that it has finally placed South Africa alongside other countries where the legal claim has been disposed of including England, New Zealand, Scotland, Canada, 42 states in the US, France, the Netherlands, Germany, Austria, Ireland, Barbados, Bermuda, Jamaica, Seychelles and Trinidad and Tobago.

Countries where adultery is still regarded as a criminal offence and where an aggrieved spouse can claim damages from a third party for adultery are Cameroon, Kenya, Botswana, Namibia, and Zimbabwe.

In 2013, the North Gauteng High Court initially found in the husband’s favour and awarded him R75 000 damages with costs for the claim for insult (but not for the loss of comfort claim), a judgment that was appealed by Mr RH.

While the Supreme Court of Appeal then found that South African law did allow for a claim of insult against a third party in the case of adultery, it questioned, of its own accord, whether the notion of “adultery” itself was even valid in modern society considering the emotional and financial costs of this type of action. The SCA, in August 2014, then held that a civil claim for adultery should no longer be permitted.

In round number three the husband approached the Constitutional Court which unanimously ruled last week that marriage was a personal and adult business and that it was up to the two parties who had undertaken the union to make it work. The law, the court, found, could not be used to “prop up” the moral obligations of the institution and that in this day and age it seemed “mistaken to assess marital fidelity in terms of money”.

“It is one thing for the law to protect marriages by removing all legal obstacles that impede meaningful enjoyment of married life. It is quite another for spouses to expect the law to prop up their marriage which – for reasons that have nothing to do with the law – is weakening or disintegrating,” wrote Judge Mbuyiseli Madlanga.

In his introduction Judge Madlanga said the pronouncement by the SCA that the time had come to rid our legal system of this type of claim, was “undoubtedly of historical moment in our jurisprudence”.

“Undertakings of fidelity – whether in the form of ho lauwa, go laiwa or ukuyalwa [SeSotho, SeTswana and Nguni marriage protocols] or solemn vows or any other form dictated by various cultures or religions – are no guarantee that adultery will not take place in marriage. In fact, adultery is probably fractionally younger than the institution of marriage,” said Judge Madlanga.

He touched on the historical background of the claim saying its origins are deeply rooted in patriarchy.

“Originally only a man had the right to pursue a claim against a third party that had committed adultery with his wife. Wives were viewed as mere chattels. And that probably explains why the claim was available only against the third party, and not the wife who – in essence – was a co-wrongdoer.”

Later South African law allowed for wives to also make the claim.

While adultery no doubt “entails a significant intrusion of a third party into a person’s most intimate relationship without their consent” the potential infringement of the rights of the “adulterous spouse and the third person to privacy, freedom of association and freedom and security of the person” also demanded protection from the state.

In this particular case the ex-wife had been subjected to “abusive, embarrassing and demeaning questioning” in the High Court and that she had been “made to suffer the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion”.

This also pertained to the “third party” who was placed in the “invidious position of having to expose details of his or her intimate interaction – including sexual relations – with the adulterous spouse. That goes to the core of the private nature of an intimate relationship”.

In his concurring judgment, Chief Justice Moegeng Moegeng noted he was in agreement with the view that the law “does and can only create a regulatory framework for the conclusion of marriage and the enforcement of obligations that flow from it. It can also help ensure that barriers to family life are removed. The rest is in the hands of the parties to the marriage. Barring exceptions, they decide freely to get married and it is within their ability to protect their marriage from disintegrating”. DM

Photo by Quinn Dombrowski. (via Flickr)