Analysis

Divorce without guilt or blame

Carmel Rickard

Civil claims for damages following adultery seem dated in the light of our modern, secular morality.

The Supreme Court of Appeal in Bloemfontein is using a divorce damages claim to also look at the wider issue of whether it would be appropriate to change the law so that such claims can no longer be brought in South Africa. (M&G, Oupa Nkosi)

Castration, cutting off a man’s nose or chopping off his hands and feet: these were all once standard punishments for a man who committed adultery with someone else’s wife. In fact, slicing off a nose seems to have been preferred to castration because it was more obvious to everyone else what he’d been doing.

These days adultery isn’t a crime in South Africa, but depending on your partner in adultery, it could result in severe damage to your bank balance rather than to your nose. That’s because the law in this country still permits an “injured spouse” to claim damages from a “third party” who has “committed adultery” with his or her spouse.

This week the Supreme Court of Appeal in Bloemfontein is taking the opportunity of just such a damages claim to consider not only the facts of this particular case, but also the wider issue of whether it would be appropriate to change the law so that such claims can no longer be brought in South Africa.

Claims such as this are not common but one, W vs M, brought a few years ago after the introduction of South Africa’s new constitutional era, ended with a high court ruling that such actions are permissible under the Constitution.

That decision was not challenged further, so this week’s hearing before judges Fritz Brand, Azhar Cachalia, Zukisa Tshiqi, Steven Majiedt and Boissie Mbha will be the first chance that the appeal court has had to examine the issue.

Outdated
Judgments and academic literature on the subject use phrases such as “innocent spouse”, “adulterous spouse” or “guilty spouse” frequently.

That sums up one of the main problems with the law as it stands. We’ve long since ditched the idea of “guilt” when it comes to divorce. Courts no longer need to hear sordid evidence about adulterous activities before they agree that couples may end their marriage.

And with the psychological understanding that led to wide acceptance of the “no fault” divorce, it seems archaic, a bizarre anachronism, to maintain the concept of “guilt” and “innocence” as the basis for a damages claim.

That, at any rate, will be the argument used by advocate Steven Kuny, appearing for what the law calls “the third party” in this week’s appeal.

His client – none of the individuals involved may be identified – was originally faced with a claim for R1-million by the ex-husband. At the end of the trial, however, the high court only awarded damages of R75?000 plus costs, which will become due to the “innocent spouse” – in this case the ex-husband – unless the decision is overturned.

The record of the trial in the high court indicates that the couple’s relationship was under strain before the woman met the “third party”, and that the notion of an “innocent party” hardly applies to anyone involved. For example, the woman had objected to her husband’s handling of their joint finances, and to the fact that he routinely withdrew all the money from her account every month after she had been paid.

The woman also said that, although she had tried to discuss the problems in their relationship, he was not interested in dealing with them.

She claimed problems of sexual and other kinds of abuse.

Unusual case
What sets this case apart from most others involving damages for adultery is that the woman left her husband and, according to her, it was during this period of separation, and once she had finally decided she would not return to her husband, that she and the third party “became intimate”. The couple subsequently divorced.

A century ago, adultery was a crime in South Africa, and an adulterous relationship further provided the basis for a damages action by the husband against the third-party male. In situations where the man had been adulterous with another woman, the wife – though the “innocent party” – was not entitled to bring a damages action; it was a claim exclusively available to husbands.

That women weren’t provided with the same legal mechanism as men in such cases stems from Roman law, under which the father or husband of a woman “caught” committing adultery could kill her. The wife, on the other hand, would have no recourse if her husband was unfaithful, a situation that reflected the status of women at the time.

Adultery has been abolished as a crime here since 1914, but it was only in 1950 that the law changed to allow a wife to bring a damages claim against the “other woman”. Despite the apparent parity between genders, however, the trial in a damages claim inevitably involves evidence of the most intimate kind, with information being heard in court that strikes at the dignity of the witness involved.

Intimate details
Here’s one vignette from the high court trial leading up to this week’s case that illustrates the horrific nature of the experience.

The woman was under cross-examination about her sex life with her husband and, in particular, whether they had had sex before they were married. The court’s question (roughly translated from the original Afrikaans) was something like this: “Let’s make this more understandable. He [her ex-husband] has said that you can’t buy a car if you haven’t first taken it on a test drive. Now was there a test drive, or wasn’t there?”

What is the purpose of the damages claim that an “innocent spouse” is entitled to bring against an “adulterous third party”? It’s supposed to soothe hurt feelings caused by this infringement of his or her emotional wellbeing, according to Marita Carnelley, law professor at the University of KwaZulu-Natal. It’s not supposed to be revenge, although there is always a danger that this is the motivation for such an action.

Carnelley has written a number of academic papers on the subject, and the appeal court asked counsel on both sides to deal with her contentions during argument this week. She raised the issue of a couple whose marriage has been troubled, for example where the spouses are in the process of a divorce with no likelihood of reconciliation, and said it would not be possible to bring a claim based on adultery by one member of the couple.

In her view, one of the most striking features of the damages action as it now stands in the law is that there has been no change to the rule that the adulterous spouse cannot be sued for damages. The courts have traditionally accepted the argument that this will not be allowed for “policy considerations”. But the resulting situation is at the very least unequal; it involves two people both regarded by the law as “adulterous”, but legal action may be brought only against one of them.

The court in W vs M tried to explain the inconsistency this way: the damages action in such a case is brought not because of a breach of trust between spouses, but against the unlawful interference of the adulterer.

Moral grounds
The most prevalent justification for the law as its stands is on moral and religious grounds. It’s significant that counsel for the husband in this week’s case, Dave Smith SC, began the high court trial by noting that the couple came from a “Calvinist, conservative” background, that they were people “that go to church” and were from a community in which marriage was seen as “holy”.

The judge picked up on this approach in his judgment and stressed that marriage was a key institution that needs protection by the state. Similarly, the judge in W vs M said it was important that the court should not send out a message that “adultery is lawful”. He said that individuals could choose whether or not to marry, and that those who did so committed themselves to exclusivity.

Carnelley, who quotes other academics on both sides of the debate, points out that adultery-based damages claims have been abolished in Holland, England, Scotland, Canada and Australia, as well as in most parts of the United States.

Among critics of the law as it stands are those who question whether the possibility of a civil damages claim in fact acts as a deterrent to adultery. There’s also concern about the possibility of blackmail, with “third parties” being prepared to pay up rather than face the humiliating demands of cross-examination.

Other criticisms see the law as archaic because it allows one spouse to treat another as “property” and overlooks the likelihood that a relationship will not disintegrate because of a third party unless there were already problems between the couple.

Carnelley’s own conclusion, and one with which the court will have to wrestle, is that a civil claim for damages following adultery has “lost its place in the context of a modern constitutional era”. Critics of the law as it stands question whether the possibility of acivil damages claim really acts as a deterrent to adultery

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