The Constitutional Court ruled last year that the victims of marital infidelity can no longer sue third parties for damages as a result of adultery. The Constitutional Court held that:
“…the act of adultery by a third party lacks wrongfulness for the purposes of a delictual claim…it is not reasonable to attach delictual liability to it. That is what public policy dictates. At this day and age it just seems mistaken to assess marital fidelity in terms of money.”
However, in a recent 2016 judgment by the KwaZulu-Natal High Court, Judge Mohini Moodley ruled that the conduct of an adulterer is still a relevant factor to be taken into account in certain divorce proceedings and remedies.
The 2016 judgment dealt with the divorce of a medical specialist and his wife. The couple was married in 1972, out of community of property and without the application of the accrual system. Section 7 of The Divorce Act 70 of 1979 states that parties married prior to 1984 (before the commencement of the Matrimonial Property Act) may apply for a redistribution of assets. In terms of her divorce, the wife sought an order that half of her husband’s estate be awarded to her, together with monthly maintenance. As part of the justification for her claim, the wife cited her husband's affairs and stated that she had contributed to his financial circumstances.
The High Court considered the husband’s adultery as a pertinent issue in its calculation as to what redistribution of assets (if any) would be just and equitable. In the circumstances, the husband was ordered to pay his wife maintenance of R22 000 per month, pay the remaining amount on the bond on the wife’s new home, transfer the car into her name and pay her an additional lump sum of R500 000.
Although adultery doesn’t attract liability in and of itself (as per the Constitutional Court judgment), the recent judgment by Judge Moodley in the High Court highlights that the significance of adultery in certain divorce proceedings should not be unduly diminished.
Accordingly, while adultery is no longer "wrongful" in the eyes of the law, that does not necessarily mean that infidelity is without consequence.