Introduction
The right of a spouse to sue a third party for damages arising from adultery committed by their partner is a contentious and evolving aspect of family law. Historically rooted in the Protection of Marriage Act and concepts of personal injury, this legal remedy seeks to compensate the aggrieved spouse for the loss of companionship, affection, and the sanctity of marriage. However, its relevance in modern legal systems is increasingly debated, with arguments centring on whether such a law aligns with contemporary values of individual autonomy and privacy. This essay critically examines the position of this right within the broader legal framework, with a specific focus on South African jurisprudence and relevant case law, where the claim for damages in cases of adultery has been addressed in notable detail. The discussion will compare this approach to general principles in other jurisdictions, outline the arguments for and against the retention of this legal remedy, and conclude with a personal view on whether this law should be abolished. By engaging with these issues, this essay aims to provide a balanced analysis suitable for undergraduate legal studies.
Historical Context and Legal Basis of the Claim
The right to claim damages for adultery stems from the historical view of marriage as a protected institution, where interference by a third party was considered a direct injury to the innocent spouse. In many legal systems, this was originally encapsulated under the tort of ‘alienation of affection’ or ‘criminal conversation,’ which allowed a spouse to seek compensation for the loss of consortium—a legal term denoting the mutual benefits of marriage, such as companionship and support. While many jurisdictions, including the United Kingdom, have abolished such claims due to their perceived outdatedness and potential for abuse, South African law provides a unique perspective as it retains elements of this remedy within its delictual framework (Neethling, Potgieter and Visser, 2015). In South Africa, the claim is grounded in the law of delict, specifically under the actio iniuriarum, which addresses injuries to personality, including dignity and reputation. This action allows an aggrieved spouse to claim damages for the contumelia (insult) and loss of consortium caused by a third party’s interference through adultery.
The South African legal system, which combines Roman-Dutch law with common law influences, has historically recognised the sanctity of marriage as a societal good worthy of protection. As such, the right to sue for adultery is seen as a means of redressing the harm caused by the intentional or negligent actions of a third party. However, the application of this remedy has evolved over time, reflecting changing societal norms and judicial attitudes, as will be explored in the subsequent section.
South African Jurisprudence and Case Law
South African case law offers significant insight into the practical application of the claim for damages in cases of adultery. One landmark case is Rh v De (2014), decided by the Constitutional Court of South Africa. In this case, the court considered whether the claim for damages against a third party for adultery infringed upon constitutional rights, particularly the right to dignity and privacy under the South African Constitution (Constitution of the Republic of South Africa, 1996). The majority judgment ultimately upheld the claim, arguing that the delictual remedy addressed a genuine harm suffered by the innocent spouse, namely the injury to their dignity and the loss of marital companionship (Van der Merwe and Olivier, 2016). However, the court also acknowledged the need for such claims to be balanced against the rights of the third party, indicating a nuanced approach.
Another significant case is Wiese v Moolman (2009), where the South African High Court awarded damages to a husband whose wife had engaged in an adulterous relationship with the defendant. The court reasoned that the third party’s actions constituted a wrongful and intentional interference in the marriage, thereby justifying compensation for the emotional harm and loss of consortium suffered by the plaintiff (Neethling, Potgieter and Visser, 2015). However, the decision was not without criticism, with some legal scholars arguing that such claims risk reducing marriage to a transactional relationship and fail to address the mutual responsibilities of the spouses themselves (Van der Walt and Midgley, 2016).
These cases highlight a tension in South African jurisprudence between upholding traditional views of marriage and adapting to modern conceptions of personal autonomy. Indeed, while the courts have generally supported the right to claim damages, there is a growing recognition that such remedies may not fully align with contemporary values, particularly in a society that prioritises individual rights and freedoms under its post-apartheid Constitution.
Comparative Perspectives and Modern Critiques
In contrast to South Africa, many jurisdictions have moved away from recognising claims for damages in adultery cases. For instance, in the United Kingdom, the tort of alienation of affection was effectively abolished following legislative and judicial trends that deemed such claims incompatible with modern family law principles (Law Commission, 1981). Similarly, in the United States, the majority of states have repealed laws related to alienation of affection, citing concerns over privacy and the potential for vexatious litigation (Hager, 2013). These developments reflect a broader shift towards viewing marriage as a private matter, where state intervention through civil remedies is seen as intrusive and outdated.
Critics of the South African approach argue that maintaining the right to sue for adultery perpetuates patriarchal notions of marriage, where spouses—often women—are treated as property whose value can be compensated through damages (Albertyn and Goldblatt, 2014). Moreover, such claims can exacerbate emotional distress in already fraught situations, turning personal grievances into public legal battles. On the other hand, proponents contend that the remedy serves a protective function, holding third parties accountable for deliberate interference in a legally recognised relationship and providing tangible redress for genuine harm (Van der Merwe and Olivier, 2016). This debate underscores the complexity of balancing individual rights with societal interests in the context of marriage law.
Personal View: Should This Law Be Abolished?
In my view, the right to claim damages for adultery should be abolished, both in South Africa and elsewhere, due to its misalignment with contemporary legal and social values. While I acknowledge the emotional harm that adultery can cause, addressing such harm through civil litigation against a third party often oversimplifies the dynamics of marital breakdown. Typically, issues of infidelity involve mutual responsibilities and personal choices that cannot be adequately captured in a delictual framework. Furthermore, such claims risk infringing on the privacy of all parties involved and can be abused as a tool for vindictiveness rather than justice.
Instead, family law should focus on equitable remedies during divorce proceedings, such as fair division of assets and consideration of conduct in exceptional cases, rather than targeting third parties. South Africa, with its progressive Constitution, has an opportunity to lead in reforming outdated delictual remedies to better reflect principles of dignity and equality. Admittedly, abolishing this right may leave some aggrieved spouses without direct recourse, but alternative mechanisms—such as counselling and mediation—could better address the underlying emotional and relational issues without resorting to adversarial litigation.
Conclusion
In conclusion, the right of a spouse to sue a third party for damages arising from adultery remains a part of South African law, grounded in the delictual framework of actio iniuriarum and supported by case law such as Rh v De and Wiese v Moolman. However, this remedy is increasingly contested as it clashes with modern principles of privacy, autonomy, and equality, particularly when compared to jurisdictions like the UK and parts of the US, where such claims have been largely abandoned. While the law seeks to protect the sanctity of marriage and compensate for genuine harm, its application often oversimplifies complex personal issues and risks perpetuating outdated views of marital relationships. In my opinion, abolishing this right would better align legal systems with contemporary values, focusing instead on internal marital remedies and non-adversarial solutions. This discussion highlights the broader challenge of adapting family law to reflect societal evolution, a task that remains critical for ensuring justice and fairness in personal relationships.
References
- Albertyn, C. and Goldblatt, B. (2014) Equality and Family Law in South Africa. Juta & Co.
- Constitution of the Republic of South Africa (1996) Government of South Africa.
- Hager, M. C. (2013) The Decline of Alienation of Affection Claims in the United States. Family Law Quarterly, 47(2), pp. 121-140.
- Law Commission (1981) Family Law: Report on Matrimonial Causes. HMSO.
- Neethling, J., Potgieter, J. M. and Visser, P. J. (2015) Law of Delict. 7th ed. LexisNexis South Africa.
- Van der Merwe, N. J. and Olivier, P. J. (2016) Delictual Remedies in South African Law. Juta & Co.
- Van der Walt, J. C. and Midgley, J. R. (2016) Principles of Delict. 4th ed. LexisNexis South Africa.
[Word count: 1,032 including references]
