Insights and inspiration
The Adultery Factor (in South Africa)
19 October 2015
A recent case from South Africa, we are told, has seemed to fix a very obvious anomaly in family law in that country. South African law is based on Roman Dutch law, and it has been a long held principle in that and South African law that if a man commits adultery with a married woman, that man can be liable to be sued by the husband of the woman with whom he commits the adultery. The nature of the action was damage to honour and reputation. In addition, damages could be awarded for what was called loss of consortium, meaning the loss of the society comfort and assistance of the marriage partner caused by the adultery. It was only in the mid twentieth century that this liability and right extended to women.
However during some of this time adultery was a ground for divorce.
More lately South Africa has had no fault divorce and therefore there is no penalty for conduct. It is bizarre that, at the very same time, it was still possible to sue for damages for adultery.
In a recent case (RH v DE) South African Supreme Court of Appeal and Constitutional Court have effectively abolished this right to sue for adultery. What is interesting to Australian eyes, unused to a constitution giving fundamental human rights, is that the Constitutional Court on appeal from the Supreme Court of Appeal focused on important constitutional issues, and saying that liaiblity for adultery would infringe the constitutional rights of the adulterous couple. Those rights include the right of a consenting individual to have a sexual relationship with whoever he or she chooses, the right to privacy, the right to freedom of intimate association and the right to freedom and security.
Moreover, the Constitutional Court concluded that contemporary public standards no longer justified treating the act of adultery as wrongful.
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