To cheat or not to cheat. - Adultery.

2014-09-13 04:47

Castration was a standard punishment in ancient times for a man who committed adultery with someone else’s wife. In South African law adultery could still result in severe damage to your bank balance rather than to your private parts.

In South Africa a spouse whose partner had an intimate relationship with another person can approach the court and summons the third party for damages. Strictly speaking, if someone is involved in a sexual relationship with a married man or woman at any time up to the finalisation of divorce by a court, knowingly that that person is still married the “innocent spouse” may summons the third party for damages.

The Supreme Court of Appeal (SCA) heard last week that adultery is generally a symptom rather than a cause of marital breakdown. The case stems from a judgement by the Gauteng High Court in Pretoria where a judge awarded damages to an innocent spouse.

Five judges of the SCA is now considering the judgement of the Gauteng High Court who awarded damages to a man whose wife had “committed adultery” shortly before they were divorced. Though the “injured husband” initially demanded R1-million in damages, the Gauteng High Court finally awarded him R75 000 plus his legal costs.

The case has caused considerable public interest: many people are unaware that adultery can still have significant legal consequences and that damages can be awarded against a “third party” for having a sexual relationship with someone who is still married.

During argument, the appeal judges considered whether the high court case had been correctly decided. But they also heard argument on whether the law allowing a damages claim for adultery should be scrapped because it serves no proper purpose.

The advocate appearing for the ex-husband argued that the purpose of a law that permits a spouse to claim damages from a third party for adultery and alienation of affection:

- Sends out a message that marriage is holy and that outsiders should not “interfere”.

- That scrapping the law would tell people that adultery doesn’t matter and that according to all the major religions it’s a sin.

- The parties were all Christian and one need to have regard to the Christian view of adultery as a sin.

- The legal right to bring a civil claim for adultery should be retained because of Christian beliefs about marriage and the sin of adultery.

- It gives the “injured spouse” a legal way of “soothing his or her feelings”.

- If the law was scrapped and this “release mechanism” disappeared, people may resort to “self-help”, taking the law into their own hands.

The judges raised the question why the law only permits the third party to be sued, whereas the spouse with whom a third party had had a relationship is not liable for any damages whatsoever. One of the judges was not impressed with the argument and stated that the court cannot possibly have legal action to enforce a biblical command. Other painful issues emerged in the appeal. Why, for example, did the high court judge permit the advocate for the husband to address the so-called guilty spouse, using the demeaning term “Mevroutjie” (Missus) at least eight times.

The court was not happy with the insulting references by the husband’s advocate during the trial that sex must have taken place because “there is no such thing as wind pollination”

The trial judge also came under scrutiny because he expressed himself in terms that women will find demeaning. At one stage the woman was cross-examined on whether she and her former husband had sex before they were married. She tried to explain that they had “tried” but that there had been problems. As the Advocate persisted with his questions on this subject, the trial judge intervened and made the following remark: “Let’s make this more understandable. He (the former husband) has said that you can’t buy a car if you haven’t first taken it on a test drive. Now was there a test drive or wasn't there?”

It also emerged in the trial that the former wife earned a significant monthly salary. Nonetheless, each month her husband took the money from her account and assumed absolute control of her funds. The judge in the trial court, however, found nothing unusual about this and made little of her unhappiness of the situation.

The judge painted a picture of one happy Christian marriage but made absolutely no mention whatsoever of the ex-wife's evidence of the issues she had for her husband’s love for pornography and the threats by him and her evidence of forced and inappropriate sex.

The advocate who appeared for the “third party”, the man who had had a relationship with the wife before the couple divorced argued:

- That the husband sued because “he was driven with rage at his wife” for leaving him. It was a way of taking revenge.

- That the law could be misused as an instrument of blackmail, and that most people would be forced to settle.

- Cases where one spouse brought a damages claim the third party would be unable to defend the case because of the expense. It also involves finding witnesses willing to testify in detail about the nature of the relationship between the parties, and this would seldom be possible.

- Any children of the marriage would also suffer as such a case inevitably involves intimate details of the parents’ relationship being made public in court.

- In this case it was shown that the marriage was under serious strain before the other relationship began. The ex-husband had been the author of his own misfortune, because he had ill-treated his wife and refused to discuss difficulties in their relationship with her.

The appeal judges were also critical that the trial court spent eight days on the matter, during which both parties were cross-examined about the most intimate details of their sexual history with each other.

The appeal judges raised the question as to why a law should exist to compensate someone for the “humiliating fact” that his or her spouse committed adultery, when the wider community would think no less of the “innocent spouse”.

The appeal judges are still writing their decision but don’t be surprised if they favour the final extinction of this destructive legal dinosaur. Judgement has been reserved.

Judgements and academic literature on the subject of adultery use phrases such as “innocent spouse” or “guilty spouse” commonly. That very sums up the main problem with the law as it stands. We have long since abandoned the idea of “guilt” when it comes to divorce and courts no longer need to hear gory evidence about adulterous doings before they agree that spouses may end their marriage. It seems archaic, a weird anachronism, to maintain the concept of “guilt” and “innocence” as the basis for a damages claim.

What sets this case apart from most others involving damages for adultery is that the woman left her husband and, according to her, it was during this period of separation, and once she had finally decided she would not return to her husband, that she and the third party “became intimate”. The couple subsequently divorced.

A century ago, adultery was still a crime in South Africa, and an adulterous relationship provided the basis for damages against the third-party male. In situations where the man had been adulterous with another woman, the wife though the “innocent party” was never entitled to bring a similar damages action, so it was a claim exclusively available to husbands.

Those women weren't provided with the same legal instrument as men stemmed from Roman law, under which the husband of a woman who “cheated” could kill her. The wife, on the other hand, would have no recourse if her husband was unfaithful.

In 1914 adultery was abolished as a crime, but it was only in 1950 that the law transformed to allow a wife to bring a damages claim against the “other woman”.

A major problem with our law at the moment is that there has been no change whatsoever to the rule that the adulterous spouse cannot also be sued for damages, only the third party can be sued. Our courts have accepted the argument that this will not be allowed for “policy considerations”. The resulting situation however is that adultery involves two people both regarded by the law as “adulterous”, but legal action may be brought only against one of them.

Adultery-based damages claims have been abolished in Holland, England, Scotland, Canada and Australia, as well as in most parts of the United States.

It may very well be that the Supreme Court of Appeal may find that a civil claim for damages following adultery has “lost its place in the context of a modern constitutional era”. Does a civil damages claim really acts as a deterrent to adultery?

Compiled by Bertus Preller

Family Law and Divorce Law Attorney - Cape Town

Twitter: @bertuspreller

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