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 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.
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.
