'Adultery is not a crime in South Africa'

Bloemfontein - Adultery is no longer a legal basis for claiming compensation for harm, according to a Supreme Court of Appeal (SCA) ruling this week.

"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light of the changing mores of our society, the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained," Judge FDJ Brand said in the judgment issued by the court.

"The time for its abolition has come."

Morals of society

The SCA ruling followed an appeal by a Gauteng man ordered by the South Gauteng High Court to pay R75 000 in damages to another man whose wife he had an affair with.

The SCA, on accepting the appeal hearing, asked that lawyers for the parties address the issue of whether adultery should remain part of the law when seen against the morals of society, the Constitution, and marriage as an institution.

The SCA upheld the appeal against the damages ordered.

Brand said the intention in his ruling was not to suggest a judgment on the "possible moral blameworthiness" of conduct like adultery. Rather it was to ensure that defendants were not legally liable for their actions.

He acknowledged that while the law related to adultery was often intended to protect marriage, he questioned whether it was a successful means to achieve this aim.

"Marriage is one of the most important institutions in our society which is and should be recognised and protected by our Constitution."

Causes for breakdown of marriage 'complex'

Brand, however, pointed out that allowing damages for adultery would not necessarily help protect marriage.

"It is now widely recognised that causes for the breakdown in marriages are far more complex. Quite frequently adultery is found to be the result, and not the cause, of an unhappy marital relationship."

He said the concept of protecting the wounded feelings of the wronged party ran counter to the nature of law to work only with what was objectively reasonable.

"If the law is to be extended to protect wounded feelings, where would we draw the line? Would it include the wounded feelings of a party whose agreement to marry had been broken, or of a man whose girlfriend had left him for another?"

Brand suggested it was an anomaly that the damages claim was only available against the third party, and not the adulterous spouse.

"If anything, the behaviour of the guilty spouse is patently more reprehensible... 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."

Dignity

Referring to the case that prompted this fresh look at the adultery law, Brand suggested its proceedings ultimately caused more damage than promoted remedy.

He suggested that the young children involved in the now broken-up marriage had been exposed to "harmful publicity and emotional trauma".

The adulterous spouse's dignity and right to privacy had been harmed through "embarrassing and demeaning cross-examination".

Brand said the impression created was that the plaintiff had been motivated by a desire for revenge, rather than solace or comfort.

"He found the defendant a convenient scapegoat and repository of his anger... I have no doubt that this is often the case."