No more damages for adultery

2014-09-26 00:00

ADULTERY is no longer grounds for a damages claim.

Appeal judge Fritz Brand ruled yesterday on behalf of a full Supreme Court of Appeal bench that, because of a shift in social mores, a damages claim can no longer be founded on adultery alone.

However, this doesn’t mean the injured party in a broken marriage cannot claim on other grounds — like damage to their integrity or reputation. Brand emphasised that he was not going to pronounce on this issue.

With the ruling, the Supreme Court of Appeal set aside a payment of R75 000 awarded by the Pretoria high court to a man because his ex-wife had an affair.

The court referred to the man as RH, his wife as Mrs H, and the lover as DE to protect their identities and those of the couple’s minor children.

The H couple married on April 30, 2005. On March 23, 2010, Mrs H left their home, and filed for divorce in June. The divorce was granted in September 2011. In April 2009, Mrs H had begun a job in the same building as DE. The couple claimed they began a relationship only after Mrs H left her husband. However, RH claimed his marriage was very happy until DE arrived on the scene.

Mrs H denied this and said she had already sought marriage counselling three times in 2009, but the relationship deteriorated further until it broke down completely.

Brand said it was clear the trial judge had “considerable personal sympathy” with RH, and that this could have influenced his findings.

The trial court laid emphasis on photos showing a “happy family” and a speech on Mrs H’s 30th birthday in which she called RH her “soulmate”.

Brand said it has always been believed that adultery causes marriages to break down, but the reality is now understood to be far more complex.

“A marriage in which the parties live in harmony is very unlikely to be broken up by a third party,” he said.

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