It is now cheap to cheat, adultery and the law.

2014-09-27 06:27

The Supreme Court of Appeal ruled on Thursday in the case of RH v DE that the law allowing civil damages claims against a third party for adultery is “archaic” and “the time for its abolition has come”. Judge F Brand’s judgement is seen as legal history and paved the path for the eradication of claims in cases of adultery.

On the one hand suing a third party stems from the concept in old English law that the husband has some proprietary interest in the person and “services” of his wife and such an action was always confined to the husband of an adulterous wife. According to some of the  older South African judgments, the action had its origins in biblical notion received from Canon law that both husband and wife in a marriage are entitled to the sole use of each other‘s body, akin to some kind of servitude. When these archaic notions were exposed by changing norms of society, the law started looking for a new raison d’etre. This was found, on the one hand, in the protection of marriage as an institution and in the notion of monetary compensation for the insult of the innocent spouse, on the other.

The judge stated in RH v DE “…the time has come for our law to recognise, in harmony with most other legal systems, that in the light of changing mores, these reasons advanced for the continued existence of the action have now also lost their persuasive force”.

The case concerned a love triangle of DE, the husband, who sued RH, the man with whom his wife had had a sexual relationship. In the court of first instance (the High Court) RH was ordered to pay the husband R75 000 in damages and both parties’ legal costs.

The husband claimed damages for what is called in law contumelia (ie insult or injury to his self-esteem) and loss of consortium (ie the loss of comfort and society of his wife). The husband did not rely on what has become known in our law of delict as the action for enticement. To succeed with the latter claim, it must be proved that the "other man" actually induced the wife to leave him or, that he had coaxed her away from the husband, that he had talked her over, or that he had persuaded her to leave the husband, and as a result thereof she had lost her affection for him.

The action for adultery is part of a group of actions, based on the actio iniuriarum, which are connected to the institution of marriage. The group also comprises the action for breach of promise to marry. With regard to the latter the Supreme Court of Appeal in the case of the Afrikaans singer Sunette Bridges, who sued her fiancé for a breach of promise to marry her said the following: “The world has moved on and morals have changed. Divorce, which in earlier days was available in the event of adultery or desertion only, is now available in the event of an irretrievable breakdown of the marriage. Guilt is no longer an issue. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ?guilt of the latter.”

Adultery was abolished as a ground for divorce in our Divorce Act 70 of 1979. Nevertheless our courts decided in the past that the action against the third party based on adultery should be maintained. The position in most other countries is that the action is no longer available. France, the Netherlands, Germany and Austria do not recognise a private law claim for adultery although at some stage it was punishable in these countries as a criminal offence. Various other academic authors also argued that the claim should have been abolished and held the view that the action was outdated and archaic and that it lost its place in the context of modern society. One academic writer said: “This is utterly repugnant to modern ideas. Not only is it degrading to the wife, who is treated as a kind of chattel belonging to her husband, but it is wrong that the time of the courts should be taken up in attempting to assess marital fidelity in terms of money.” In England, the action for adultery against a third party, or “criminal conversation” as it was called, had also been abolished by legislation in terms of the Law Reform (Miscellaneous Provisions) Act 1970.

Supporters of the continued existence of the action against the “other man or other woman” believe that in the main it serves two purposes: First, to protect marriage as an important institution of society and, second, to protect the personality rights of injured spouses by affording them compensation for the injury they had suffered and (perhaps) for the wounded feelings they were made to endure. The fact that the action was only available against the third party only and not against the adulterous spouse is difficult to understand. The actions of the guilty spouse are more inexcusable than that of the third party and more hurtful to the innocent spouse. It is, after all, the guilty spouse, not the third party, who solemnly undertook to remain faithful and who is bound by a relationship of trust.

Judge Brand stated that marriage is one of the most important institutions in our society which is and should be recognised and protected by our Constitution. But, although marriage is a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties, its essence consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it. If the parties to the marriage have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that.

A question to be answered is whether suing a third party will have any deterrent effect of the action. In most other countries it was found that it has no deterrent effect. Perhaps one reason was that adultery occurs in different circumstances. Adultery often happens without any premeditation, when deterrence would hardly play a role. Adultery is sometimes carefully planned and the participants are confident that it will not be discovered. The causes for the breakdown in marriages are far more complex and quite often adultery is found to be the result and not the cause of an unhappy marital relationship. Conversely stated, a marriage in which the spouses are living in harmony is hardly likely to be broken up by a third party.

Compensation to the innocent spouse for the contumelia (ie insult) which he or she had suffered must be tested against the prevailing norms of society. The views were expressed in previous judgements that in modern society the reasonable person would not regard the “cuckold husband” or betrayed husband with less respect. It may well be that society thinks less of the guilty spouse but not of the one who had been betrayed.

Ultimately the court came to the conclusion that in the light of the changing mores of our society, the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained; that the time for its abolition has come. What this means is that a claim based on adultery, which afforded the innocent spouse a claim for both insult or injury to his self-esteem and the loss of comfort and society of his wife is no longer available as part of our law.

The court did not deal with other possible claims based on the actio iniuriarum which relate or are connected to the institution of marriage, such as the action for abduction, enticement and harbouring of someone‘s spouse. The judge commented as follows: “I leave the sustainability of their continued existence as the subject of consideration for another day.

The court also made no comment on the continued existence of the claim against a third party, based on adultery, for the patrimonial harm suffered by the innocent spouse through the loss of consortium of the adulterous spouse, which would include, for example, the loss of supervision over the household and children. This may well afford the innocent spouse a claim.

All in all an historic and well reasoned judgement.

Compiled by Bertus Preller - Family and Divorce Law Attorney

Website: and

Twitter: @bertuspreller


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