Pretoria - Aggrieved spouses can no longer claim damages based on adultery as this concept is outdated and has no place in modern society. Five judges of the Supreme Court of Appeal (SCA) in Bloemfontein have found this type of claim is no longer justified and would thus no longer form part of our law.
“It’s become outdated and can no longer be sustained – the time for its abolition has come,” Judge FDJ Brand said on Thursday.
The SCA last month heard arguments on whether the right to claim damages for adultery was still relevant in modern society. This was sparked by an appeal where a Gauteng man, identified only as R, was ordered by the high court sitting in Pretoria, to pay R75 000 in damages to his rival, identified as D, for alienation of affection of his wife.
The court ruled that the parties not be identified, as both have small children and explicit sexual evidence had come to light during the trial.
Before hearing the merits, the judges asked to be addressed on whether these kind of claims should remain on the law books, weighed against the morals of modern society, the constitution and the concept of marriage.
Judge Brand said that in most other countries this action was no longer available. In England, where this action originated, it has since been abolished. Countries, such as New Zeeland and Australia which inherited this law from England, also abolished it. In America this law had been abolished in 42 states.
Judge Brand said the reason for the abolition in these jurisdictions was that the action is regarded as no longer conforming with considerations of morality nor justifiable.
Where South African law was at odds with this, it made one think “are the morals and needs of our society so different from most others?”
Those who contend this action should remain on the law books say it protects the institution of marriage which society holds dear as one of the most important bases for family life.
“I have no doubt that marriage is one of the most important institutions in our society… protected by our constitution… But the question is, if the protection of marriage is one of the main goals, is the action (for adultery) successful in achieving this goal?”
The judge said grave doubts had been expressed by many about the deterrent effect of the action.
Quite often adultery was found to be the result – and not the cause – of an unhappy marriage.
“A marriage in which spouses are living in harmony is hardly likely to be broken up by a third party.”
Judge Brand said the time had come for our law to recognise that in light of changing norms of society, the reasons advanced for the continued existence of this law had lost its persuasive force. This type of action often brought about hurt and exposed young children to the antics of their parents. Evidence led in adultery actions also seriously impacted on the dignity and privacy of a defendant and the spouse accused of adultery.
The plaintiff was often motivated by anger at the break-up and the defendant was often the convenient scapegoat. Such actions were often driven by a craving for revenge.
These type of actions, normally heard in a high court, were also costly.
Judge Brand upheld the appeal by R, stating the plaintiff’s wife was unhappy long before she met her new lover and that he was not the reason why she had divorced her husband.
Pretoria News