Adultery and the courts: out with the old

Towards the end of 2014, the courts took notice of what they regarded to be changing social mores, and abolished a legal remedy which had been a part of our common law for hundreds of years.

Ms H and DE were high school friends who later married and had two children together. During the marriage, Ms H embarked upon an extramarital affair with RH, whom she met through her work. Ms H sued DE for a divorce, which was granted.

DE then approached the High Court with a claim against RH for damages arising from “contumelia” (that is, insult, or injury to one’s self-esteem) and “loss of consortium” (that is, loss of his wife’s comfort and company). He argued that his marriage to Ms H had been happy, until RH had entered the picture and entered into an adulterous relationship with her. Ms H and RH, on the other hand, alleged that the marriage had broken down before Ms H and RH commenced their adulterous relationship.

The High Court largely accepted DE’s evidence, finding that the marital breakdown sprang largely from RH’s adulterous relationship with Ms H, and awarded DE damages of R75 000,00 to be paid by RH, together with interest and legal costs.

Unhappy with this outcome, RH approached the Supreme Court of Appeal with a request to set aside the judgment.

The appeal court noted that the spouses had lived in separate residences before the proven commencement of the adultery. There could be no claim for loss of consortium, as DE had already lost his wife’s comfort and company before RH embarked upon an adulterous affair with her. The appeal court found that there was evidence to support a claim for contumelia arising from the adultery, as the adultery was committed while the couple were still undergoing marital counselling and the marriage had not yet been abandoned by DE.

The appeal court then paused to consider the history of legal actions arising from adultery. It noted that adultery was a crime under Roman law. It had ceased to be a criminal offence 100 years earlier, as a result of social values changing. Even when adultery was no longer a criminal offence, a husband had the right to claim damages arising from adultery. 70 years ago the courts had extended that right to wronged wives as well, in accordance with developments in social mores. The 1979 Divorce Act abolished adultery as a ground for divorce. Today, no action for adultery remained in most countries in the world. The appeal court expressed the view that social mores in South Africa did not differ so greatly from the rest of the world.

The appeal court concluded that the action was archaic and that is no longer belonged in modern society. The action had no deterrent effect upon adultery, and so did not protect marriages. There was furthermore no longer a sense in society that the wronged spouse had been “cuckolded” and shamed by the adultery. Even though the wronged spouse might feel deeply hurt, there were many instances where people felt deeply hurt and the law gave them no remedy.

The appeal court accordingly developed the common law by abolishing the actions for contumelia and loss of consortium arising from adultery. It set aside the award of R75 000,00 in DE’s favour, and ordered him to pay RH’s legal costs of the appeal – no doubt a very bitter pill for DE.

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