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You and Your Rights

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You and Your Rights

Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.

Adultery

Not in itself a ground for divorce

Adultery may be defined as voluntary sexual intercourse between a married person and someone other than his or her spouse. In law, both the married person and the lover are adulterers. Adultery used to be one of two grounds for divorce in South Africa, the other being malicious desertion. The Divorce Laws Amendment Act, 1935, added two further grounds - seven years' incurable insanity and imprisonment for five years after a declaration of habitual criminality.

Major changes were introduced in the Divorce Act, 1979. It is now unnecessary to prove that one of the parties has committed a 'matrimonial offence' such as insanity, desertion or adultery in order to obtain a divorce.

There are at present only two grounds for divorce. These are the irretrievable breakdown of the marriage, or the mental illness or continuous unconsciousness of one of the spouses. The irretrievable breakdown may, however, be caused by the adultery of one of the partners.

Case History - The concealed bugging device

Mr S, who was separated from his wife, accidentally discovered a transmitting bugging device concealed in his flat. It transpired that his estranged wife had employed a firm of private investigators to try to find out whether he was committing adultery.

One of the agents for the firm had gained entry to Mr S's flat and installed the bug. While it was in use, the detectives failed to uncover any evidence of infidelity - in fact, they formed the opinion that Mr S was still in love with his wife.

Mr S laid charges of criminal injuria (the unlawful, intentional and grave impairment of another's right to self-respect and privacy) against the two private detectives.

  • The detectives were convicted in a magistrate's court and each sentenced to a fine of R50 or 25 days' imprisonment, which was suspended for two years on condition that they were not convicted of criminal injuria again during that period. On appeal, the Transvaal Provincial Division of the Supreme Court upheld the conviction and sentence.

(State v A, 1971)F

Adultery: the 'co-respondent'

An innocent party cannot sue a guilty spouse for damages for adultery, although the latter may be prevented on divorce from deriving any financial benefit from the marriage by reason of his or her conduct. (See divorce.)

The innocent spouse may bring an action for damages against the third person (the 'co-respondent'), with whom the adultery was committed, even if divorce proceedings are not instituted.

However, a third party who was unaware that the other person was married, cannot be sued, as the action is based on deliberate interference with the consortium (the right of association of a husband and a wife).

Damages are awarded on the basis of the insult caused to the innocent party and of the loss of consortium. Compensation may be claimed for financial loss caused by break-up of the marriage, as well as for the loss of the affection of the other partner. The court will consider the couple's financial and social situation, their moral reputation and the state of their relationship before the adultery was committed.

When the innocent spouse's behaviour was partly responsible for driving his or her partner into another person's arms, the damages awarded will be considerably lower. If the co-respondent behaves particularly callously towards the innocent partner - for example, if she entices a husband away from his wife and lives openly with him, pretending to be his wife - damages will be increased.

An action for damages may be brought by the innocent party only within three years of learning about the adultery of his or her partner. (See debts, recovery of.)

An innocent party may not take the law into his or her own hands. For example, a husband may not lock his wife up to prevent her from seeing her lover.

Disclaimer :: You and Your Rights
Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.
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General Disclaimer: The content of Legal City does not constitute legal, tax or financial advice, nor does it necessarily reflect the views of our management, staff, shareholders, associates, contributors, authors or suppliers. Even though every endeavour has been made to ensure the accuracy of this information we cannot be held responsible for any errors and/or omissions. By using this web site you agree to accept and abide by our terms and conditions.
This web site and all its content is copyright © 2000-2014, Legal City CC • Web site managed with qPortal Content Management v 4.0.0 • This page loaded on October 23, 2014 at 1:53:54 am, SA Standard Time.