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01 Jul 2010

Infidelity
Hi I have been seeing a married man now for a few months who told me he intends on getting divorced but is not in the financial position right now to go ahead with it. He told me he is not staying in the same house as his family but in the " granny"  flat in their yard and is going to start divorce proceedings within the next 6 months. As a result we have kept our relationship a secret pending the divorce proceedings. I have now got a phonecall at work from a unknown lady who did not want to identify herself saying she is going to announce my behaviour to my boss and my collegues and is also going to the local newspaper about me. I know what I am doing is wrong but he assured me he is in the process of getting divorce and being human i have developed strong feelings for this man and found it hard to end things. Is this lady allowed to do what she intends on doing? I know I have infringed on the wife''s marital rights but do i have any rights in respect of defamation of character against this anonomous woman should she make trouble at my work or go to the newspapers?
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Expert
Family law expert
family law expert

01 Jan 0001

My answer is strictly from a legal perspective. An innocent spouse may bring an action for damages against the third person (the ‘co-defendant’), with whom the adultery was committed; this can be done even if divorce proceedings are not instituted against the other spouse. A third party who was unaware that the other person was married at the time the adultery was committed cannot be sued, as the action is based on a deliberate interference with the consortium (the right of association of a husband and a wife). Damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium. Compensation can be claimed for financial loss caused by break-up of the marriage, as well as for the loss of the affection. A court will consider the spouse’s financial and social situation, their moral reputation and the state of the relationship before the adultery was committed. When an innocent spouse’s behaviour was partly responsible for driving his or her partner into another person’s arms, the damages awarded can be considerably lower.

If the co-respondent behaves particularly callously towards the innocent partner - for example, if she entices a husband away from his wife and lives openly with him, pretending to be his wife damages will be increased. An action for damages may be brought by the innocent party only within three years of learning about the adultery of his or her partner otherwise the claim would be nullified as a consequence of prescription.

Regarding the phone call, you may have resource in interdicting the person, if you knew her identity as her conduct infringes on your right to privacy also, I does not seem that you were the cause of the breakdown of the marriage and thus any claim against you may be very hard to prove.
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