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light of the changing mores of our society, the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained; that the time for its abolition has come.”

The Supreme Court of Appeal (SCA) has found that delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained. This is not to suggest a judgment on the “possible moral blameworthiness” of conduct like adultery. Rather it is to ensure that adultery is not actionable at law (and the adulterers are not legally liable for their actions).

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 this case, the Plaintiff (the cuckolded husband) sued his ex wife’s lover for damages. His action relied on the actio iniuriarum in the form of adultery and adultery only. Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), he did not rely on what has become known in our law of delict as the action for enticement. To succeed with the latter, the plaintiff would have to show not merely that his wife left him for the defendant, but that the defendant actually induced her to leave him or, in the words of Trollip J in Wassenaar v Jameson 1969 (2) SA 349 (W) at 352B, ‘that he had coaxed her away from the applicant, that he had talked her over, or that he had persuaded her to leave the applicant, and as a result thereof she had lost her affection for him. That is usually a very formidable onus to discharge’

Once it is appreciated that the plaintiff’s case relied on adultery only, the sole question is: what were the consequences of the adultery? It was common cause that the parties were separated in March 2010 and never resumed cohabitation and that the marriage had broken down irretrievably before they got divorced.

The present state of our law allows the plaintiff an action against the defendant for contumelia. The conclusion that the adultery was committed at a time when the marriage had already broken down irretrievably is no absolute defence to this claim, although it means that the award for loss of consortium could not succeed.

The court then asked the question: was there a justification for the continued existence in our law of the delictual claim for adultery. It stated:

“The context in which the question arises is the recognition by our courts that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated, firstly, by s 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport and objectives of the Bill of Rights. Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum”.

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. I leave the sustainability of their continued existence as the subject of consideration for another day;” and

“the continued existence of the claim against a third party, based on adultery, for the patrimonial harm suffered by the innocent spouse through the loss of consortium of the adulterous spouse, which would include, for example, the loss of supervision over the household and children”.