IT’S finally official: adultery is no longer part of South African law and a “wronged spouse” may no longer sue for damages.

A unanimous decision by the judges of the Constitutional Court delivered today says that marriage is based on the concept of two willing parties and where the relationship breaks down it is not appropriate for the law to intervene in the parties’ intimate personal affairs.

As the judges put it, speaking about the previous right to sue for damages where adultery has occurred: “(In) this day and age it just seems mistaken to assess marital fidelity in terms of money.”
The case has a long history, and concerns a husband (now the ex-husband) who brought a R1-million claim against the man with whom his estranged wife had had an intimate relationship.
The husband and wife were not living together at the time the second relationship became intimate and the wife (now the ex-wife) said that as far as she was concerned by that stage the marriage could not be revived.

Initially the adultery claim was brought in the high court where the judge found in favour of the husband and awarded him R75 000 in damages, plus costs.
That was reversed by the Supreme Court of Appeal whose judges held that the common law should no longer permit a civil claim for adultery.
The ex-husband, however, took the matter to the Constitutional Court where the judges asked the parties for written argument on the issue.
In today’s judgment that court agreed to grant the ex-husband leave to appeal – and then went on to dismiss his appeal.

The case caused widespread interest since many people had not realised the significant legal consequences that could still result from adultery, and that damages could be awarded against a “third party” for having a sexual relationship with someone who was still married.
Dave Smith SC, who appeared for the ex-husband in the high court and in the appeal court, had argued for the important role that a civil claim for adultery played. It sent out a message that marriage was ‘holy’ and that outsiders should not interfere. Adultery was a sin according to all the major religions.

He also said the claim was a “release mechanism” that gave the “injured spouse” a legal way of “soothing his or her feelings.”
Steven Kuny, who acted for the “third party” from the start of the litigation, characterised the civil claim as a way of taking revenge and as a weapon in divorce actions used to achieve better settlements. He added that the third party would often be unable to afford to defend such a case.
Kuny stressed how difficult it was for the third party and the “adulterous spouse” to give evidence because it involved such intimate details – a matter raised by the Constitutional Court as well. Any children would also suffer, he said, because of such details about their parents’ relationship being made public in court.

In his introductory remarks today, Justice Mbuyiseli Madlanga, writing for all members of the court, said the decision was “undoubtedly of historical moment” in South Africa.
Discussing the origins of the right to sue for adultery Justice Madlanga said it was “deeply rooted in patriarchy”, and that this had initially led to a civil claim being only available to the husband.
He said the court viewed marriage as an institution worth of protection, but that while the sanctity of marriage was recognised, the “conception” of marriage had changed, as had the “punitive extremes” to which the law would go to protect it.

Internationally the trend was towards scrapping the civil claim based on adultery.
Justice Madlanga said it was one thing for the law to protect marriages by removing all legal obstacles impeding “meaningful enjoyment of married life”, but it was quite another for spouses to expect the law to “prop up their marriage which – for reasons that have nothing to do with the law – is weakening or disintegrating”.

He added that the spouses themselves had the main responsibility to protect and maintain their marriage relationship.

As far as the “adulterous spouse” and the third party were concerned, their rights such as privacy and freedom of association did not necessarily weigh less because of the adultery between them.
The civil claim for adultery was particularly invasive of the right to privacy as was seen in this case where the ex-wife experienced “abusive, embarrassing and demeaning questioning”. Similarly, in order to defend a claim based on adultery, the third party was placed in the invidious position of having to expose intimate details of the relationship.
Even where the adulterous spouse had not been “wronged” by the other spouse, it was a reality of life that “sometimes marriages just do not work out”.

Chief Justice Mogoeng Mogoeng agreed with all that Justice Madlanga wrote, but, with Justice Edwin Cameron, he added an additional brief judgment saying that the law had a role in supporting marriage by helping ensure that barriers to family life were removed, but “The rest is in the hands of the parties to the marriage.”

“The law cannot shore up or sustain an otherwise ailing marriage,” he said. “It continues to be the primary responsibility of the parties to maintain their marriage.”
“For this reason the continued existence of a claim for damages for adultery by the ‘innocent spouse’ adds nothing to the lifeblood of a solid and peaceful marriage,” the Chief Justice said.

CCT 182-14 DE v RH