Unless you are living under a rock, you have likely seen the latest scandal shaking pop culture. A high-powered CEO was recently caught red-handed cheating on his wife with the head of his company’s HR department, at a Coldplay concert, no less, thanks to the infamous kiss cam! Despite desperate attempts to avoid detection, the footage quickly went viral. Rumours began swirling worldwide that a nasty divorce was on the cards for the disgraced executive and that his wife was poised to hit the jackpot in the settlement.
The short answer is no. Not Every Affair Ends a Marriage.
Despite what sensational headlines might suggest, not all marriages end because of infidelity.
Contrary to popular opinion, adultery does not guarantee a favourable divorce settlement for the betrayed spouse.
Since the Divorce Act 70 of 1979 came into effect in South Africa, we’ve followed a “no-fault” divorce system. This means that a marriage can only be ended for one of three reasons:
• The relationship has broken down irretrievably,
• One spouse is mentally ill, or
• One spouse is continuously unconscious.
This system removed adultery as a standalone reason for divorce. So, unlike before 1979, you can no longer sue your spouse or the person they cheated with just because of the affair.
However, infidelity might still be relevant when it comes to forfeiture of marriage benefits.
When a divorce is granted due to the irretrievable breakdown of a marriage, the court has the discretion to order that one spouse gives up their share of the financial benefits of the marriage (either fully or partially) in favour of the other. This can happen if the court, after considering the length of the marriage, the reasons it broke down, and any serious misconduct by either spouse, believes that not making the order would unfairly benefit one spouse over the other. So, in cases involving adultery, the question becomes whether the affair counts as “serious misconduct.”
• How long the marriage lasted
• What caused the breakdown of the marriage
• Whether either spouse behaved particularly badly
• And whether one spouse would gain an unfair financial benefit if forfeiture is not ordered.
The court has to weigh each of these factors, but not all of them have to be present. Their combined effect is also important.
In short, when a couple gets divorced, the court doesn’t focus on who is to blame for the breakdown of the marriage. Adultery by itself does not lead to a claim for forfeiture of the financial benefits of the marriage. So, cheating doesn’t automatically mean the guilty spouse will lose out financially, or that the other will gain. It can be one of the factors the court considers in a forfeiture claim, but unless there are other serious circumstances involved, it’s unlikely to result in a financial advantage for the wronged spouse.
If you’re concerned about a potentially unfaithful partner, you can consider including a “no cheating clause” in your antenuptial or postnuptial contract (containing a clause deterring the spouse-to-be from being involved in an extramarital affair in the future). See this article. While such clauses aren’t always legally enforceable, there are situations where they can be upheld and offer some financial protection to the wronged spouse.
If you would like more information on this or to have an antenuptial or postnuptial contract drawn up – please reach out to Bregman Moodley Attorneys.
www.bregmans.co.za |☎️011 646 0335 | ✉️info@bregmans.co.za