FAMILY LAW: SCA rules no damages claim in our law for adultery

On 25 September the Supreme Court of Appeal (per Brand JA) laid to rest a 160-year old anomaly in our law that allowed a spouse to claim damages from a third party with whom his or her spouse had committed adultery as a result of the negative effect on the injured spouse’s dignity, by emphatically declaring that such remedy has no place in our society anymore.

In a very well-reasoned and thoroughly researched judgment, Brand JA traced the history of this action back to its roots and established that, while adultery was considered a crime under Roman and Roman-Dutch law (on which our common law is based), there never was a claim for damages for such actions. Even the criminal act of adultery ceased to exist in our law exactly 100 years ago. The court found that this action was introduced into our law via the English Privy Council in a judgment dating back to 1854, which was based on a complete misunderstanding of Roman Dutch law principles. It is also telling that this remedy, which is of English origin, is no longer recognised in Britain itself.

Besides conducting a thorough comparative legal analysis, which indicated that this type of remedy had been gradually abolished in countries like Canada, Austria, Germany, the USA, England, Scotland, Australia and New Zealand since the 1970’s, the court also commented on the anomalous nature of the remedy, which allows the injured spouse to sue the third party, but not the “guilty” spouse whose conduct is, in a sense, more reprehensible and immediately damaging to the injured party. For an institution that often shows a complete lack of empathy for the actual effect of its judgments on the common man, the court showed a remarkable degree of insight into the effects of this type of litigation on the parties themselves, and the fact that it forces them to testify about their sex lives in open court, is damaging to the children and perpetuates their anger towards each other. The court was of the view that awarding an arbitrary amount of money could not mitigate against these negative effects of exercising the remedy. Lastly, the court recognised that the element of wrongfulness, which forms part of any delictual claim for damages, is determined by the mores of society, which change with time and that society today regards adultery as a moral, rather than a legal issue.

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