Adultery occurs where a married person has voluntary sexual intercourse with someone other than his or her spouse. The claim for adultery damages is against the third party and not one’s spouse. A woman married under customary law cannot claim adultery damages from another woman who has committed adultery with her husband. This is so because a customary marriage is potentially polygamous. This also applies to an unregistered customary law union. On the other hand a man married under customary law can sue a man who has committed adultery with his wife has a right to sue him for adultery damages in a court administering customary law.

A marriage in terms of the Marriages Act (Chapter 5:11) is monogamous. Accordingly either spouse can sue a third party who would have sexually intruded into their marriage. Obviously a claim for adultery damages will not be successful where the third party is not aware that the person they are sexually involved with is married.

The rationale for a claim for adultery damages is the preservation of the institution of marriage. In South Africa the court has held that the continued existence of the delict of adultery is no longer justified. Our courts have refused to follow this route in a bid to protect the sanctity of marriage. There is no doubt that public opinion frowns upon adultery.

The action for adultery is based on two grounds; injury to feelings (commonly referred to as contumelia) and loss of comfort, society and services (loss of consortium). If these two grounds are not proved then there can be no claim for damages. As an example, the court will not grant a claim for adultery damages where the Plaintiff condoned or in the worst consented to the adultery. It would be difficult to prove loss of consortium where a spouse has ‘allowed’ an adulterous relationship to go on for years and children are born out of the adulterous relationship. On the other hand where a long standing and sound relationship is suddenly wrecked by a third party a high quantum of damages will be justified. The courts mainly rely on previous cases to come up with the quantum of damages.

Admittedly the disdain against adultery is no longer as it used to be long ago as moral views are becoming more and more liberal. In Katsumbe v Buyanga 1991 (2) ZLR 256 (H) the court had this to say:

“Accordingly, unless they are prepared to take a strong and principled stand in this regard in support of the vital institution of marriage, the courts will only be a part of society’s further slide down the slippery slope to the unlicenced promiscuity which scoffs at the spiritual prohibitions against pre-marital or extra-marital sex and which has landed the world in the sexual morass over which the monster AIDS now presides in all its frightening aspects.”

It remains to be seen whether the courts will put brakes to the ‘slide down the slippery slope’.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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