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Drafted by: Nazli

Adultery & Divorce – Can I sue his Mistress?
Posted on: 16 Feb, 2017

Adultery - The Mistress of DivorceIn times of adultery, divorce can get messy. Divorce attorneys often get questions like:

I want a divorce because my husband cheated. Can I sue his mistress? /

My wife cheated. Can I sue the person with whom my wife had had an affair?

After the Constitutional Court case, DE v RH was decided on 19 June 2015, the answer is clear and simple: NO.

An “innocent” spouse may no longer sue the third party who  had had an affair with his/her “guilty” spouse. A claim for damages arising from adultery no longer forms part of the South African law.

What happened in DE v RH?

We have summarized the adultery case of DE v RH in plain language. The summary focuses on the facts and explain why the legal position in South Africa was changed.

DE v RH: The Adultery Case

    • 2008: Mr DE and Mrs H were married, but experienced marital problems since 2008.
    • 2010: Despite marriage counselling, Mr DE and Mrs H were unable to change the situation. In 2010 Mrs H moved out of the common home after which she became romantically involved with Mr RH.
    • 2011: Mr DE and Mrs H got divorced in 2011. Mr DE believed that the adulterous relationship between Mrs H and Mrs RH was the reason for the breakdown of the marriage. Mrs H said that the affair only started after the marriage relationship was already broken down.
    • North Gauteng High Court (Pretoria): Mr DE successfully sued Mr RH for damages arising from adultery. The claim was for insult or injury to his self-esteem (contumelia) and for loss of comfort of society (consortium).
    • Supreme Court of Appeal: Mr RH did not agree with the outcome. On appeal, the Court held that Mr DE does not have a claim for loss of comfort of society (consortium), but that he may have a claim for injury to his self-esteem (contumelia). The Supreme Court of Appeal raised on its own accord (mero motu) the question of whether or not the relevant claim should still be part of South African law by focusing on:
      • i.) The history of the claim,
      • ii.) Foreign Law – how other countries deal with this,
      • iii.) The changing norms of society and
      • iv.) The financial and emotional costs involved.
    • The Supreme Court of Appeal held that “in the light of the changing mores [norms] of our society, the delictual action based on adultery… has become outdated and can no longer be sustained… the time for its abolition has come.” (Par 4)
  • Constitutional Court: Mr DE sought leave to appeal against the decision of the Supreme Court of Appeal.

Why was leave to appeal to the Constitutional Court granted?

The Constitutional Court held that the Supreme Court of Appeal failed to develop the common law position in line with the South African Constitution. The Supreme Court also did not take into account Mr DE’s right to dignity when it did away with the relevant claim. Finally, the Supreme Court did not focus on the importance and value of marriage and family. (Par 9)

The Constitutional Court’s Findings

The Constitutional Court focused on the element of wrongfulness: does the act of adultery meet the element of wrongfulness? The Court answered this question by focusing on the:

1. Historical Background:

Originally the claim was only available for husbands. Only husbands could sue the men who had affairs with their wives. As years went by, Christian principles of fidelity came into play and the claim became available for both husbands and wives in the 1940s. (Par 14)

2. Changing Attitudes towards Adultery:

The Court held that there has been a softening of attitudes against adultery in South Africa. In 1914 in Green v Fitzgerald and Others (another matter) the Court held that “adultery… has ceased to be regarded as crime.” (Pars 23 – 24)

“Times are changing, and the law – though still recognising the sanctity of marriage – has moved with times…” (Par 27)

3. Foreign Law:

In many countries, the claim for damages arising from adultery is no longer available. These countries or areas include England, New Zealand, Australia, Scotland and most provinces of Canada. Most states of the United States of America have also abolished or severely restricted the action. Adultery is no longer a crime in France, the Netherlands, Germany and Australia. There seems to be a general trend towards the abrogation of adultery as a criminal offence and a civil claim arising from adultery. (Pars 28 – 30 & 37)

The Constitutional Court also focused on the infringement of Constitutional Rights:

The “innocent” spouse has the right to dignity. This right is protected by the Constitution. There might be a potential infringement of the right to dignity due to adultery.
The “guilty” spouse and the third party have the fundamental rights to privacy, freedom of association and security of the person. These rights are also protected by the Constitution and do not necessarily weigh less because they had an adulterous relationship. There would be an infringement of these rights, especially the right to privacy, when the third party and / or “guilty” spouse must expose details about their intimate interactions. (Pars 53 – 54)

The Constitutional Court had to weigh these rights against each other in light of the current trends and changing attitudes of society. The Constitutional Court held that there are factors that may make adultery less reprehensible (disgraceful, shameful) or not reprehensible at all. There is an example in paragraph 55:

“…the conduct of the non-adulterous spouse might have caused the marriage relationship to be so intolerable as to drive the spouse who ends up being adulterous into the arms of the third party.”

The Conclusion

The Constitutional Court held that public policy dictates that the act of adultery by a third party lacks wrongfulness for purposes of a delictual claim and it would not be reasonable to attach delictual liability to it.

“At this day and age it just seems mistaken to assess marital fidelity in terms of money.” (Par 63)

Divorce Attorney Cape Town, Nazli WilliamsNazli Williams (BCom LLB), the director of Patton Williams Attorneys, is an admitted attorney of the High Court of South Africa, specializing in Divorce and Family Law matters. Her fields of expertise and interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, helping good people in plain language and with great technology, to achieve remarkable results.

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