Analysis

Can adultery still be seen as a crime?

Carmel Rickard

Appeal court judges question why a betrayed spouse should be compensated for 'humiliation'.

Adultery is generally a symptom rather than a cause of marital breakdown, the Supreme Court of Appeal heard this week.

Five judges of that court were considering a judgment of the high court that had awarded damages to a man whose wife had “committed adultery” shortly before they were divorced. Although the “injured husband” originally claimed R1-million in damages, the high court eventually awarded him R75 000 plus costs.

The case has caused considerable public interest: many people are unaware that adultery can still have significant legal consequences and that damages can be awarded against a “third party” for having a sexual relationship with someone who is still married.

During argument, the appeal judges considered whether the high court case had been correctly decided. But they also heard argument on whether the law allowing a damages claim for adultery should be scrapped because it serves no proper purpose.

The judges asked Dave Smith SC, appearing for the ex-husband, about the purpose of a law that permits a spouse to claim damages from a third party for adultery and alienation of affection.

‘Holy’ union
Smith said its continued existence sends out a message that marriage is holy and that outsiders should not “interfere”. Scrapping the law would tell people that adultery doesn’t matter, he said. In fact, it is a sin according to all the major religions, Smith argued, and the legal right to bring a civil claim for adultery should be retained because of Christian beliefs about marriage and the sin of adultery.

It is also necessary, he said, as it gives the “injured spouse” a legal way of “soothing his or her feelings”. If the law was scrapped and this “release mechanism” disappeared, people may resort to “self-help”, taking the law into their own hands.

Smith had also argued that, in the particular case being heard by the appeal court, the third party had “enticed” the woman into a relationship with him. But the judges said there had been no evidence of this and that it had not been proved during the high court trial. Instead, they said all the evidence indicates that the relationship had been one in which two consenting adults played an equal role in its development.

The judges questioned why, despite such evidence, the law only permits the third party to be sued, whereas the spouse with whom a third party had had a relationship is not liable for damages.

Advocate Steven Kuny, who appeared for the “third party” – the man who had had a relationship with the wife before the couple divorced – said the husband sued because “he was driven with rage at his wife” for leaving him. It was a way of taking revenge, he said.

Expensive to defend
Kuny said in most cases where one spouse brought a damages claim the third party would be unable to defend the case because of the expense. It also involves finding witnesses willing to testify in detail about the nature of the relationship between the parties, and this would seldom be possible.

Any children of the marriage would also suffer as such a case inevitably involves intimate details of the parents’ relationship being made public in court, he said.

In this case it was shown that the marriage was under serious strain before the other relationship began. The ex-husband had been the author of his own misfortune, Kuny said, because he had ill-treated his wife and refused to discuss difficulties in their relationship with her.

The judges were critical of the way the trial was conducted in the high court: eight days had been spent on the matter, during which the parties were cross-examined about the most intimate details of their sexual history with each other. They said all that had been required was to establish when the adultery had occurred, and whether this was before or after the marriage had finally broken up.

They indicated their reluctance to deal with “the gory details” that the judge had permitted in the high court, and asked both sides whether it had been necessary to do so.

Language
The judges criticised the language used during the hearing, saying they would not have allowed Smith to address the woman as “mevroutjie” (little missus) as he had done in the high court. They said he should not make submissions that were both silly and insulting, such as his suggestion that intercourse must have taken place because “wind pollination does not exist”.

“That is not the kind of submission that I want in my court,” presiding judge Fritz Brand said.

The judges asked why a law should exist to compensate someone for the “humiliating fact” that his or her spouse committed adultery, when the wider community would think no less of the “innocent spouse” because of this. Judge Azhar Cachalia said it might have been an issue 50 years ago, but now people simply say: “Sorry, it didn’t work out.”

Judgment has been reserved.

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