Delictual Action based on adultery.

03 February 2020 , Dries Knoetze 702

Can I sue the third party who, according to me, caused the breakdown of my marriage, by entering into an adultery relationship with my wife?

“My wife and I are married for almost 5 years and I have caught her cheating on me with her supervisor at work. I know my wife very well and as such I know that the adultery relationship emanated from her Supervisor. My wife has informed me that she wants a divorce and will institute action for same. Can I hold him accountable and liable for the breakdown of our marriage?”

In a judgment handed down by the Supreme Court of Appeal on 25 September 2014, in the case of RH v DE (Case No: 594/2013), the court found that “the action derived from the actio iniuriarum and based on adultery, which afforded the innocent spouse a claim for both contumelia and loss of consortium, is no longer wrongful in the sense that it attracts liability and is thus no longer available as part of our law.

In relation in America and according to the Washington Post a Husband has sued his wife lover and mentor of his wife at her place of employment for a ridicules amount of $750 000.00 which amounts to more or less R11 000 000.00 due to the trite principle of action iniuriarum.

In the matter of RH v DE, the court held this action has its history as following:

“In the end the history of the delictual action for adultery reveals its archaic origin. On the one hand it stems from the concept in old English law that the husband has some proprietary interest in the person and ‘services’ of his wife. That is why in common law the action for criminal conversation was always confined to the husband of an adulterous wife. According to some of our older judgments, on the other hand, the action was influenced by the biblical notion received from Canon law that both husband and wife in a marriage are entitled to the sole use of each other’s body (see for example Strydom v Saayman 1949 (2) SA 736 (T) at 738; Foulds v Smith supra at 8), akin to some kind of servitude.

When these archaic notions were exposed by changing norms of society, the law started looking for a new raison d’etre. This was found, on the one hand, in the protection of marriage as an institution and in the notion of a solatium for the insult of the innocent spouse, on the other.

But as I see it, the time has come for our law to recognise, in harmony with most other legal systems, that in the light of changing mores, these reasons advanced for the continued existence of the action have now also lost their persuasive force.

What is more, even if the action still performs some legitimate function which I may have overlooked, that notional advantage will be far outweighed by the hurt and damage that the action too often brings about.

Some of these were well-illustrated in this case, and the list is clearly not exhaustive:

First, the trial exposed the young children of the marriage to harmful publicity and emotional trauma which was manifestly not in their best interest. One day they may even be confronted by the evidence given at the trial and the cross-examination which delved into the extramarital sex life of their mother.
The evidence normally led in adultery actions seriously impacts on the dignity and privacy of the defendant, and the spouse that is alleged to have committed adultery. In this case Ms H was subjected to embarrassing and demeaning cross-examination and was made to suffer the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion.
The clear impression one gains from the evidence in this case was that the plaintiff was motivated by considerations of anger at his wife for the breakup of their marriage. He found the defendant a convenient scapegoat and repository of his anger and his desire for revenge. So, instead of being moved by a need for solace and closure, the action was driven by a negative and destructive craving for revenge. I have no doubt that this is often the case.
Actions for adultery are usually prosecuted in the high court and involve the parties in enormous costs. During the trial reference was made to costs incurred by the appellant alone which amounted to half a million rand. That of course is to be doubled to provide for the costs on both sides and it obviously did not include the costs of appeal. The actual award of damages thus paled into insignificance when compared to the costs. One suspects that these costs will be far beyond the means of most defendants who may then be compelled to suffer the consequence of a default judgment. Even from the plaintiff’s perspective, the game can hardly be worth the candle”

Quoting Van Zyl JP in Asinovsky v Asinovsky 1943 CPD 131 at 132-133 when he said:

“It is difficult to see why the act of a man committing adultery with another man’s wife should amount to a delict towards the husband, but the adultery of a woman’s husband should not be treated as a delict committed by him towards her”, the court raised the anomaly that:

“If anything, the behaviour of the guilty spouse (the ex-wife in this case) is patently more reprehensible than that of the third party and more hurtful to the innocent spouse (the plaintiff ex-husband). It is, after all, the guilty spouse, not the third party, who solemnly undertook to remain faithful and who is bound by a relationship of trust”.

The court then concluded that “in the light of the changing mores of our society, the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained; that the time for its abolition has come”.

The court left open for decision at a later date and by another court concerning:

“other actions based on the actio iniuriarum which relate or are connected to the institution of marriage, such as the action for abduction, enticement and harbouring of someone’s spouse.

As such and with the above mentioned matter the claim against a third party for adultery came to an end and should you wish to institute such an action it is advised that you take a step back and rethink your approach.

Reference List: