A marriage failing is much like a slow, sinking ship. Once the water seeps through the cracks, the ship slowly begins to rot, degrade and ultimately sink. If there is a crack in a marriage relationship, the relationship will begin to degrade to the point where it can no longer stay afloat. In some instances, whilst the relationship is sinking, one party may jump ship, find comfort and solace on a life boat, in the arms of someone else. Adultery. The marriage ceases to float. Can the court come to the rescue and compensate the non-adulterous spouse for the wrongs of the adulterous spouse or the third party?

Our law previously recognised a right of action in delict, brought by a non-adulterous spouse, against a third party, for adulterous behaviour that causes injury or insult to self-esteem (contumelia) and loss of comfort and society (consortium) of their spouse. However this position has recently changed. The 19th of June 2015 saw a judgment handed down by the Constitutional Court, DE v RH [2015] ZACC 18. In this matter the court had to decide whether this action still had a place in our law or whether it was time to re-evaluate and develop the common law in light of current societal norms, public policy and the changing mores of our society.

In evaluating a delictual claim, the element of wrongfulness is required. The question of whether wrongfulness was present in adulterous behaviour was the pivotal question the court dealt with in this judgment as well as the impact constitutional imperatives have on a delictual claim. The court found that wrongfulness was not present in a claim against a third party for an adulterous act because public policy, the legal convictions of the community and the values held by society dictated a relaxation of society’s attitude toward adultery. The changing attitudes of the South African public toward adultery plays a major role in determining wrongfulness.

The court considered the position of various foreign jurisdictions on a civil claim for adultery and it appears that the current trend is toward the abrogation of civil claims as well as criminal claims. A judgment from the Seychelles stated that quod vide “the evolution of the law within the commonwealth jurisdictions over the last decade or so demonstrates that there is no longer any turpitude attached to adultery.” Adultery is a very frequent occurrence in South Africa however it was never reported as a crime, only the divorce was reported, thus the crime was abolished due to lack of enforcement and a clear easing of attitudes.

The applicant argued that a delictual claim for adultery is intended to protect a marriage. The applicant also intended to use the law as a punitive measure to come to his aid but in this instance the marriage deteriorated without obstruction or intervention by the law. The private occurrences in a marital relationship that lead to the breakdown of the marriage are of no concern to the court thus the law should not provide a remedial measure in a personal and private matter. It therefore seems contrary to public policy to assess marital fidelity in terms of money. The court is only there to ensure the divorce, if instituted, is regulated and processed correctly rather than “punishing” the parties to an adulterous relationship and imposing punitive penalties.

The reality is that some marriages just do not work. People fall out of love and relationships. The court looked at the constitutional rights of the adulterous spouse and the third party, which include the right to freedom of security of the person, privacy and freedom of association. These rights still carry the same weight and effect in light of the fact that the spouse has committed adultery. These rights therefore need to be respected despite the individual’s private behaviour.
It is the obligation of the spouses to a marriage to avert anything negative befalling the foundation of the marriage. Should the parties fail in this obligation, the law is not there to patch the wounds and fix the cracks. The ship is already sinking, the court can only ensure that the ship sinks smoothly and settles amicably on the ocean floor. The court is available to assist with the smooth dissolution of the marriage where it has irretrievably broken down for personal and private reasons. 

We hope the above is of interest to you. Should you require legal advice on family law please do not hesitate to contact us on +27 11 788-0083 or email enquiries@bkm.co.za.

Written and prepared by Caitlin Askew
BOUWER KOBELI MORABE ATTORNEYS