Adultery and the South African legal system

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Photo by Junior KàrRick Djïkôunoü

The trending video of Katlego Maboe has sparked much social debate on gender-based violence, divorce, anger management, resolving marital issues and adultery. From these debates, it has become apparent that there is a need to remind the South African public on what the law says about adultery.

Adultery and malicious dissertation are for the most part, the only ultimate acts which indicate that a marriage has broken down. They are more often the effects of marriage having broken down than the causes of breakdown. In Ancient Rome, adulterers were punished by the church or their families through unilateral self-help measures. Adulterers could be castrated, killed, banished, flogged and women could be sent back to their families (divorce). 

In 18BC, Emperor Augustus introduced the lex Julia de adulteriis, which was a legal guideline aimed at keeping Rome’s morals ‘clean’ from non-marital sexual conduct. Adultery was made a criminal offence for women. Women who committed adultery were prosecuted, tried and sentenced by special adultery courts. 

Unfortunately, women had no legal right to sanction their husbands for infidelity. A wife’s adultery was considered a serious offence because it had the unwanted effect of confusing paternity. In Green v Fitzgerald (1914), the South African Appellate Division decriminalised adultery.

Under Roman-Dutch Law, the law made it possible for the aggrieved husband to claim damages from the third party since it had become illegal for men to kill their philandering wives and their lovers. The injury action was based on defilement of the wife, violation of another man’s bed, corruption of another man’s wife, loss of the wife’s consortium and any patrimonial loss the husband may have suffered due to the act of adultery. The husband was also legally compelled to divorce his adulterous wife, and she, in turn, would lose all claim to the matrimonial property. 

The South African legal system adopted these Roman-Dutch principles. In Viviers v Kilian (1927), the court held that the aggrieved innocent spouse could bring an action for damages against a third party with whom the adultery was committed. Such a claim could be brought regardless of gender, sexual orientation (after the promulgation of the Civil Union Act) or whether or not divorce proceedings were instituted against the guilty spouse. The delictual claim could be brought on two grounds; adultery (having sexual relations with a married person) and alienation of affection or enticement (paying attention to a married person with the intention of drawing that person from their marriage). 

The innocent spouse could claim for an insult to personality/ injury to personality/self-esteem (contumelia), loss of comfort of the spouse or society (consortium), damage to reputation and dignity, infringement of personality rights, loss of services, infringement of feelings and feelings of piety.

The law was indirectly saying that the third party could be punished as an abettor and a seducer. This legal avenue was often misused by spouses during matrimonial disputes where one spouse would file complaints against suspected or imagined third parties they would allege to be having affairs with their spouse. Although some of these charges could not be proved and the cases subsequently dismissed, they had a negative impact on the reputation of the third parties. This legal position was archaic, unconstitutional and arbitrary.

Prior to the introduction of the Divorce Act and no-fault divorce, adultery was one of the three grounds for divorce. Adultery attracted financial penalties for the adulterous spouse under the principle that a spouse should not be allowed to gain a financial benefit from a marriage which has been wrecked through his matrimonial delinquency. A no-fault divorce system entails that it is extraneous to the court to ascertain who caused the breakdown of the marriage relationship. Neither party is held responsible for the failure of the marriage. Furthermore, if one spouse believes that the marriage relationship has broken irretrievably, the consent of the other spouse is not required for the court to grant a final order for divorce. 

The South African legal system only recognises two grounds for divorce: the irretrievable breakdown of the marriage and mental illness or continued unconsciousness of one of the spouses. Although it is not a stand-alone ground, adultery is one of the indicative factors of the irretrievable breakdown of the marriage if one of the spouses finds it irreconcilable with a continued marriage relationship.

Brand JA made legal history in RH v DE (2014) when the Supreme Court of Appeal correctly interpreted and applied Section 39(2) of the Constitution which imposes a duty on courts to develop the common law in order to promote the spirit, purport and objectives of the Bill of Rights by looking at international law and foreign law so that the common law is reflective of the changing social and economic norms of society. The court abolished the law allowing civil claims against third parties for adultery. 

This decision was confirmed by the Constitutional Court. The decision, albeit welcome, was also criticised mainly on the basis that it eliminated the last legal consequence attached to adultery. However, enforcing the law in this way was peculiarly archaic, and the action injuriarum in adultery was out of step with reality. In this digital age, how would an aggrieved spouse sue a catfish (phantom personality), or a cyber-romantic partner with only an IP address and an overly fictitious user name?

Many countries are yet to abolish adultery as a crime or an action leading to a civil lawsuit for damages. In most of these countries, the criminal statutes for adultery remain largely symbolic with little to no enforcement. Adultery remains prohibited in Sharia or Islamic law (Iran, Bangladesh, Iraq, Afghanistan, Pakistan, Saudi Arabia, and Somalia).

The legal question in relation to amorous liaisons and cuckoldry is not whether the infidelity in marriage is right or wrong or whether it denotes sexual and contractual freedom. It is whether or not the state has a right and an obligation to monitor such intimate and adult relationships. Adultery actions focus on a deteriorating marriage and a spousal claim for punitive measures against the other spouse or a third party. 

Courts should not be expected to prop up a disintegrating marriage when the law had nothing to do with the said disintegration. Love and respect are the foundations of a solid marriage, not legal rules. 

The burden and privilege of a successful marriage rest on the spouses who made a commitment to be faithful to each other. That burden should not be placed on third parties or be regulated by criminal law. Criminalising adultery or affording the delictual claim for adultery does not protect the sanctity of the institution of marriage.

The absence of legal remedies is not a license to commit adultery. Adultery is still legally relevant in law. Adultery can be used as evidence for the irretrievable breakdown of marriage when instituting divorce proceedings. Although the rules of no-fault divorce apply, adultery may be a relevant factor in determining spousal maintenance, redistribution orders and a claim of forfeiture of benefits. It can also be argued that using adultery to determine divorce settlements amounts might amount to a financial punishment for an action that is no longer regarded as legally wrong. The courts are still to decide on actions for patrimonial harm suffered through the loss of consortium of an adulterous spouse.

By Lilleonah Chivenge, Master of Laws Candidate- University of KwaZulu Natal.