Divorce and Adultery are both sensitive and emotionally charged topics.

Breaking Up a Marriage: Can Third Parties be Held Liable?

Previously, Courts in South Africa enabled a spouse to sue a third person for dissolving their marriage. However, the Supreme Court of Appeal repealed this law in 2014, identifying it as old-fashioned and based on patriarchal beliefs. The Constitutional Court upheld this judgement in 2015, and it no longer applies in South Africa.

Adultery is one of the most common grounds for marriage breakdowns and subsequent divorce proceedings in South Africa, as it is in many other nations.

While the South African legal system has evolved in recent years to a “no-fault” system, which means that a person does not need to establish fault, such as adultery, to divorce, the reality is that adultery remains a key component in many divorces.

In this essay, we will look at the current state of affairs in South Africa regarding adultery and divorce, studying the historical context, societal views, and legal ramifications of this complex topic.

Adultery and Divorce in South Africa: A Current Situation Overview

Despite the country’s “no-fault” divorce law, adultery is a popular ground for divorce in South Africa.

This means that a person no longer needs to establish blame, such as adultery, in order to divorce, but many couples continue to cite adultery as the basis for their marriage’s failure.

Historical Context and Social Attitudes

For many years, extending back to the country’s colonial past, adultery has been a reason for divorce in South Africa.

Adultery was once considered a moral weakness and a source of shame in society.

This resulted in societal pressure to stay in difficult or unsatisfying relationships, even if one or both partners had been unfaithful.

However, cultural opinions toward adultery have shifted throughout time.

Adultery is now widely accepted as a natural element of human behaviour, and many people are willing to accept it as a basis for divorce.

This shift in attitudes has led to a higher acceptance of divorce as a realistic option for unhappy or dissatisfied marriages, contributing to South Africa’s rising divorce rate.

While public opinions about adultery have shifted, it is crucial to highlight that this does not imply that adultery is now viewed positively or without consequences.

Adultery is still commonly regarded as ethically immoral and can cause severe mental distress for those involved.

Despite this, many people nowadays are more inclined to contemplate divorce as a remedy to an unpleasant or unsatisfying marriage, even if adultery is involved.

It is crucial to highlight that society’s attitudes toward adultery vary greatly based on cultural and religious background and that societal pressure to remain in unpleasant or unsatisfied marriages persists in some cultures.

Furthermore, societal attitudes regarding adultery may differ based on the gender of the unfaithful party, with women frequently incurring greater social stigma than males.

While South Africa’s legal system has developed into a “no-fault” divorce system, societal attitudes against adultery continue to be an essential factor in the breakup of marriages.

Understanding the historical context and societal attitudes about adultery is critical to understanding the current state of affairs in South Africa regarding adultery and divorce.

Divorce based on Adultery

South Africa has a no-fault divorce system.

South Africa’s legal system is “no-fault,” which implies that a person does not need to establish fault, such as adultery, to divorce.

The no-fault system was implemented to make the divorce process less adversarial and lessen the likelihood of disagreement between the parties involved.

Adultery as a Common Cause of Marriage Dissolution

Although South Africa has a no-fault divorce system, infidelity remains one of the leading causes of marriage dissolution.

According to the South African Institute for Race Relations, adultery is listed as grounds for divorce in around 25% of all divorce cases.

This demonstrates the continuing cultural significance of infidelity in marriage dissolution in South Africa.

Adultery Is A Crime In Other Countries.

While South Africa has a no-fault divorce system and does not punish adultery, it is nonetheless a felony in other countries.

Adultery is a capital offence in various nations, including Saudi Arabia and Iran. It is punishable by jail in some countries, such as Indonesia and Bangladesh.

This demonstrates the cultural and legal distinctions that exist between countries when it comes to infidelity and divorce.

It is vital to remember that criminalizing adultery has negative implications, such as a loss of privacy and possibly abuse.

It also does not always address the underlying reasons contributing to a marriage’s demise, such as a lack of communication or compatibility.

The decision of the Supreme Court of Appeal: The case of RH v. DE

In the case of RH v DE, the Supreme Court of Appeal (SCA) in South Africa issued a significant judgement in 2014, effectively abolishing the use of adultery as a reason for divorce.

Read the Full Judgement Here

The SCA found that cheating was irrelevant to the dissolution of the marriage because South Africa has a “no-fault” divorce system in effect.

In 2015, the Constitutional Court issued a decision in the case of DE v RH, which called into doubt the validity of a spouse’s ability to sue a third party for adultery-related damages.

Read the full Judgement Here

The Court eventually opted to repeal this right, deeming it archaic and incompatible with modern society standards.

Case Summarization

Mr DE sued Mr RH in Court for damages, alleging that Mr RH had an affair with Mr DE’s wife, Ms H.

The Court granted Mr DE’s claim for insult but denied his claim for loss of comfort and society with his spouse.

Mr RH filed an appeal with the Supreme Court of Appeal, asking whether the claim for insult should be reinstated.

The Court eventually ruled that the claim was obsolete and repealed it. The Constitutional Court likewise agreed that such a claim was no longer legal.

The evidence established that Mr DE and Ms H’s marriage had significant problems and that Ms H departed the marital home before any connection or relationship developed between Mr RH and Ms H.

Many foreign countries have already abolished the adultery claim.

The claim’s origins can be traced back to patriarchy, when only men could file a claim and wives were considered property.

The Court also examined the breach of privacy and the emotional and financial costs associated with such conduct.

Reasons for Adultery Prohibition

The SCA gave numerous grounds for eliminating adultery as a cause for divorce.

The Court observed that adultery is not always symptomatic of a ruined marriage, as many couples can reconcile and go on after infidelity.

Furthermore, the Court highlighted that citing adultery as a reason for divorce can often result in bitter and lengthy judicial proceedings that are emotionally and financially expensive for all parties concerned.

The SCA also stated that using adultery as a reason for divorce can propagate damaging stereotypes and stigmatize women who have been the victims of infidelity.

The Effect on Society

The SCA decision in RH v DE profoundly influenced South African society since it effectively removed one of the main justifications for divorce.

This has resulted in a shift in public attitudes about infidelity and a decrease in the frequency of divorce cases citing adultery as a reason for divorce.

The judgement has also benefited the children of the marriage by lowering the possibility of heated legal processes and allowing for a more pleasant and less stressful divorce process.

Children’s Welfare

The SCA’s decision to eliminate adultery as a reason for divorce has the extra benefit of protecting the marriage’s children.

For children, adultery can be distressing, resulting in emotional and psychological harm.

By removing adultery as a reason for divorce, the Court is assisting in mitigating this harm and ensuring that the child’s best interests are preserved.

Furthermore, by emphasizing a “no-fault” divorce system, the Court try to ensure that the children are not subjected to protracted and unpleasant legal battles.

Final Thoughts on Divorce: Can Third Parties Be Held Liable?

South Africa’s Supreme Court of Appeal and Constitutional Court have both concluded that a claim for damages against a third party in the context of adultery is no longer part of the country’s law.

The Court acknowledged that the claim had become outdated and could not be supported in light of changing societal values.

The Court also emphasized that the delict of adultery had been abolished in several foreign jurisdictions and that the claim’s origins were firmly anchored in patriarchy.

Finally, the Court concluded that it is the spouses’ responsibility to safeguard and sustain their marriage relationship. The delictual claim was incredibly intrusive and infringed on the right to privacy.

Read More: 

8 Common Factors That Can Lead to the Breakdown of a Marriage

The Divorce Process in South Africa

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