Adultery has always been an enormous factor which leads to the breakdown of many marriages. It alienates spouses from each other, creates issues of trust, an unhealthy living environment and in most instances a broken family unit. 

Previously, an innocent spouse was able to bring an action for damages against a third party with whom the adultery had been committed. Even in cases where divorce proceedings had not been launched between the spouses, a claim by a third party could be brought on two grounds, namely:

  1. Adultery, which is the act of having sex with a married person; or
  1. Alienation of affection or enticement.

The Divorce Act 70 of 1979 introduced a no-fault system and adultery was no longer a ground for divorce but was merely used to prove that the marriage had broken down irretrievably.

Of significance to our law on adultery in South Africa was the case of DE v RH 182/14, a case which was taken on appeal to the Constitutional Court. The decision of the Constitutional Court in this case was that adultery by a third party lacks wrongfulness for a delictual claim for injury or insult to self-esteem and loss of comfort and that it is not reasonable to ascribe delictual liability to it. The Constitutional Court was also of the opinion that love and respect are foundations of a solid marriage and not legal rules. The obligation to protect and maintain a marriage relationship rests solely on spouses.

In addition to the above, the Constitutional Court found that a delictual claim is particularly invasive of, and violates the right to, privacy. In order to defend a delictual claim based on adultery, a third party would be placed in an exceptionally unpleasant position of having to divulge details of the intimate ongoings between the third party and the adulterous spouse. That goes to the root of the private and intimate nature of a relationship.

Consequently there is no evidence that the action for adultery would deter a spouse in a marriage from committing adultery, and nor would it deter a third party from committing adultery with a married person. Adultery is more often than not a symptom of the breakdown of the marital relationship and not the cause.

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Author – Kate Bailey – Hill

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