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In essence, this action forms part of a larger group of actions based on ‘injury to one’s personal dignity’. As the action is “delictual”, the wronged person claims monetary damages from the perpetrator.
Moreover, in cases where a spouse had an extra marital affair, the wronged spouse was able to institute legal proceedings against the third party girlfriend or boyfriend for the damage caused to their reputation and the pain and suffering caused by the adulterous relationship.
Historically, arguments in favour of the retention of the delict of adultery posit that it serves as a deterrent to extra-marital affairs, protects the sanctity of marriage and forces spouses to be faithful to one another.
Roots in roman dutch law
Interestingly, the action has its roots in Roman Dutch law and was originally based on the premise that a husband is the dominant partner in a marriage and has a “proprietary” interest in his wife.
Until 1914, adultery was a criminal offence on the part of the wife - not the husband - and a husband could also claim damages from a third party for interfering in his marriage. The action, however, was not available to a woman whose husband had strayed. In 1950, the action was extended to allow married women to sue the third party.
The essence of the action for adultery holds that the adulterous party is responsible for the breakdown of the marriage in question. However, an argument which is frequently raised against this premise is that an affair is usually a symptom of a marriage in crisis - rather than the cause.
Actions for adultery have since been abolished in England, Canada, Australia, Netherlands and the majority of the States in America.
No-fault system
In 1979, South Africa introduced what has become known as a ‘no-fault system’ of divorce. As a result, adultery was no longer deemed to be ground for divorce, but merely one of the reasons. The grounds for all divorces are now based on the irretrievable breakdown of the marriage relationship, and the reasons for such irretrievable breakdown vary according to each factual matrix.
(It must be noted that misconduct in the marriage does still play a part, and has been retained as one of the aspects of the marriage which will be taken into account in the determination of maintenance - and to a limited respect to the division of assets.)
Morals have changed…
In November 2014, an interesting matter came before the Supreme Court of Appeal. A husband had instituted an action against his wife’s boyfriend for adultery. He had succeeded in the lower court and been awarded a sum of money on the basis that the lower court held his claim was successful, and the boyfriend was at fault.
The boyfriend appealed to the Supreme Court of Appeal and interestingly, the SCA held that the legal convictions of the community have moved on, morals have changed and an action based on adultery which affords a spouse a claim for the loss is no longer part of our law.
The Court went further to examine the action for adultery and criticised it on various bases: including that the action is only available against the 3rd party and not the spouse, takes no account of whether the guilty spouse was the seducer or the seduced, and takes no cognisance of whether or not the parties remain married.
The latter criticism was levelled on the basis that, if the affair was fleeting and the spouses remained married, any damages paid by the third party could arguably be shared by the guilty spouse.
The SCA also examined whether or not the action for adultery serves to protect marriage by acting as a deterrent, and found that it does not. Insofar as the damage to the innocent spouse’s reputation is concerned, the SCA was of the view that a reasonable person in current day society would not find that the innocent spouse had been humiliated or insulted by the adultery - and that in modern society, the reasonable person would not regard the innocent spouse with less respect.
The wronged spouse, who clearly felt very strongly about his rights, then approached the Constitutional Court following his loss in the SCA. The Constitutional Court ruled, on a unanimous basis, that adultery is no longer part of our law and a wronged spouse may no longer sue for damages.
The judges concurred that in this day and age it just seems mistaken to assess marital fidelity in terms of money. It is clear that the courts, whilst they view marriage as an institution worthy of protection, no longer support the punitive extremes previously afforded to parties.
New norms in ‘modern society’
Whilst the decision is in line with the views of other first world legal systems, and is certainly a worthy one on many levels, it does leave a wronged spouse with little or no recourse in a situation where there has been an affair.
In addition, a perception certainly exists (even if only in the mind of the wronged spouse) that, but for the third party, the marital relationship would have been capable of being recovered.
Moreover, while the action for adultery was often used by practitioners as a tool to manipulate a guilty spouse into settling on more favourable terms, it also served as somewhat of a salve for the wound created by the affair.
That being said, society has certainly changed significantly since the inception of the cause of action, and norms which would have been frowned upon a few decades ago are now commonplace and acceptable in “modern society”.
The need for the action and the benefit afforded by it have clearly become diminished over the years, and to such an extent that it simply cannot be held that it serves as a deterrent or “protector” of the sanctity of marriage any longer.
