Marriage between spouses creates rights to and duties of cohabitation, love and affection. Parties have “a duty to live together, to afford each other the marital privileges, and to be faithful to each other”. What happens when one spouse commits adultery?

Previously, although adultery could no longer be used as a separate ground for divorce and did not give the innocent spouse an action for damages against the other spouse, they did have a delictual action against the third party with whom adultery was committed.

The law has however changed as claims in cases of adultery against a third party were eradicated in the constitutional matter RH v DE in 2015.

In 2014, the Supreme Court was faced with the question of whether the claim for insult against a third party in the case of adultery should continue to exist.

The Facts of the Case:

DE sued RH for damages on the basis that RH had an extra-marital affair with DE’s ex-wife. DE claimed that his personality rights were infringed, more specifically, that his personality was insulted and claimed for loss of comfort and society of his spouse. DE succeeded in respect of the claim for insult but was unsuccessful for the claim for loss of comfort and society, as there was no evidence that the adultery had caused the breakdown of their marriage.

The Supreme Court further ruled that considering the changing values of society and the financial and emotional costs of an action of this nature, the claim based on adultery was outdated and could no longer be sustained. The court therefore abolished it.

At the Constitutional Court in 2015, the court based its decision on the fact that love and respect are the foundations of a solid marriage, not legal rules. It’s the spouses who vow to be truthful and faithful to each other and therefore they have the obligation to protect and maintain their marriage and further, the delictual claim violates the right to privacy.

The court further ruled that the idea of sacrosanctity of marriage and the protection thereof by the law is far different now and has changed with the times both in the conception of marriage and the punitive measures it would go to protect marriage.

So as it stands now, third parties to an adulterous relationship can no longer be sued for damages.


Contributor:  PHINDILE MDLULI (Associate) (Pietermaritzburg Office) (Litigation & Matrimonial Department)

E-mail: phindilem@tmj.co.za

Tel: 033 - 341 9100