Adultery - Is it fair to pay damages for sleeping with a married man or woman?

2013-05-20 07:03

Infidelity and cheating in marriage is a serious problem affecting society. The fast changes in social living and the rise of technology have propelled this problem to an all new level. The reality is that infidelity is destructive and brings heartbreak to the affected parties. Adultery laws extend back to the days of the Old Testament and the term stemmed from the notion of “adulterating” or polluting the bloodline of a family when a married woman had sex with someone other than her husband and ran the risk of having another man’s child.

In a number of countries across the globe, adultery continues to be a crime punishable by very severe penalties, including, fines, arbitrary detention, imprisonment, and, in the most extreme instances, death sentences by stoning.  In many of the Islamic states, adultery is banned and, in some, court sentences of death by stoning are sometimes carried out, as, recently was the case in in Saudi Arabia and in Mali.

In a number of Asian countries, including India, South Korea and the Philippines, adultery remains to be a crime. In Pakistan, adultery is a crime under the so-called Hudood Ordinance which sets a maximum penalty of death, which has been on the whole controversial because it requires a woman making an accusation of rape to provide extremely strong evidence to avoid being charged with adultery herself.

In the United States, close to 20 states still have criminal adultery provisions and while prosecutions remain rare, they do occur. In most of those states, including New York, adultery is a misdemeanour. But in others states such as Idaho, Massachusetts, Michigan, Oklahoma and Wisconsin it is a crime, though rarely prosecuted. In the armed forces, it can be punished severely although usually in combination with a greater wrongdoing. In 2003 most states in the US have removed their laws regulating cohabitation, homosexual sodomy and fornication, sex between unmarried adults. This was after a Supreme Court decision which made sexual activity by consenting adults in private legal across the country. The question of how this ruling has affected adultery was left unanswered simply because third parties may be harmed by adultery, for example a spouse and children.

"He slept with his secretary." "I'm taking everything, including the cutlery!" Emotional responses like these are very common during a divorce. In other countries however, they have no place in divorce proceedings where the need to prove fault has been eliminated and the conduct of the other party is not a factor considered by the court when granting a divorce, dividing property or maintenance orders. Adultery in these countries is rather seen as a symptom of a failing marriage.

One can’t deny the fact that a spouse male or female who has been having an affair normally creates an emotional cyclone in which communication is all but difficult. It creates intense jealousy as well as an overwhelming sense of impotence.  It is said that sexual betrayal feels like a rejection of all that you are. The symptoms of the sexually betrayed can be similar to those of post-traumatic stress disorder. Infidelity raises primal anxieties about being abandoned. The person you trusted to have your best interests at heart actually threatens your sense of self, place, purpose and security.

In South Africa adultery is not a crime. A Pretoria high court judge has ruled however recently in the case of Erasmus v Heine that marriage is still a sacred institution and that instituting a claim for damages against a third party by an injured spouse resulting from adultery was not old-fashioned.  Acting Judge L I Vorster’s judgement came in the wake of a damages claim instituted by a certain Mr Erasmus against a certain Mr Heine who allegedly had an adulterous relationship with Erasmus’s wife Suné in August 2010. In the judgement Heine was ordered to pay R 75 000 to Erasmus for damages. Erasmus’s former wife and Heine testified that they were Christians and subscribed to the principles of Christianity as a religious faith.

It is so that the sacredness of marriage and the duty that it places on both spouses to the marriage to engage in sexual activity with one another only within the framework of the marriage was recognized in a comprehensive judgement in 2009 in the Pretoria High Court in the case of Wiese v Moolman. Acting Judge L I Vorster in the Erasmus case was in complete agreement with the Wiese decision and found that it followed that the marital rights of sexual intercourse and affection and devotion of married parties are still held in high esteem in our law and the rights of action of either spouse to protect those rights, in the case of violation thereof by third parties, to claim damages as a result of such infringement, were still part and parcel of our law and enforceable.

Many questions emanate from these decisions. Can it not be argued that in our day and age the legal convictions of the community changed? Did morals not change in modern times that adultery is no longer seen as wrong? Is it really so that marriage is still viewed as sacred and that it is important that the law protected innocent spouses against the interference from outside into their marriages?

Should marriage not become a social and/or religious institution rather than a legal one? Why should the State give special rights to some couples merely because they obtained a piece of paper from the Department of Home Affairs?

A few years ago Constitutional Law expert Pierre De Vos on his blog Constitutionally Speaking argued that nobody should be allowed to claim for damages for pain and suffering from the person who had sex with their spouse. According to De Vos at least twopeople are involved in infidelity and one is the spouse of the person wanting money from the third party. The question then is why should the unmarried partner suffer because of actions by a cheating married partner?

De Vos raised questions as to why the married partner who committed adultery is not perhaps more blameworthy than the unmarried partner and that the unmarried partner obviously do not promise anybody that he or she would remain faithful. He made the point further that in a society based on the values of freedom and equality, it is unwise to make an unmarried person pay damages for sleeping with a married man or woman, as this curtails that person’s freedom and treats the married person – the one presumably being dishonest! – as if he or she is completely blameless.

De Vos used the example of President Zuma and argued that when President Zuma sleeps with someone who is not one of his wives, his wives will have a right to sue that person for damages while the President will be completely blameless from a legal point of view. According to De Vos this will be deeply unfair and will send the wrong signal about how the law should deal with honesty and dishonesty. De Vos argues further that the rule was inspired by patriarchal values in which married men were hardly ever blamed for lying and cheating, while unmarried woman who sleep with them were.

The laws regulating sex stemmed from a belief that sex should occur only within a marriage. Criminal law was there to reinforce marriage as the legal locus for sex. So any other circumstance or sex with a member of the same sex, or adultery was seen as a definite violation of marriage. We now live in an age when sex is not limited to marriage and our laws are slowly responding, having said  that, we still love marriage and nobody is going to say adultery is acceptable.

But upholding adultery as a criminal offence even when, on the face of it, it applies to both women and men means in practice that women will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality, given continuing discrimination and inequalities faced by women.

It is debatable whether, in today’s day and age, there is still place for an action to sue a third party for adultery in South African law.

Compiled by Bertus Preller

Family Law Attorney and author of Everyone's Guide to Divorce and Separation - Random House.

Abrahams and Gross Inc. – Cape Town

Twitter: bertuspreller

Web: http://www.divorceattorney.co.za

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