Since September 2014, the right to claim damages for the of alienation of affection suffered by an ex spouse against the third party lover, for "contumelia" (insult) or "loss of comfort and society of the spouse", now no longer exists. The aggrieved ex husband in the case of DE v RH took the SCA's decision to the Constitutional Court.
On 19 June 2015 the Constitutional Court delivered its judgment in the long awaited "adultery" case, which looked at the rights of the non- adulterous spouse to claim damages from the third party who caused the marriage to break down. In its unanimous judgment, the Constitutional Court held that there is no basis to impose a delictual liability for adultery. In a lengthy judgment the court held.
"What also comes into the equation are the softening and current trends and attitudes towards adultery. The constitutional norms and changing attitudes are not necessarily separate notions: constitutional norms also inform present day attitudes towards adultery. Of relevance in respect of the adulterous spouse and the third party are the rights to freedom and security of the person, privacy and freedom of association.
These rights do not necessarily weigh less just because the two have committed adultery. The delictual claim is particularly invasive of, and violates the right to, privacy. This very case is illustrative of this. The Supreme Court of Appeal dealt with the abusive, embarrassing and demeaning questioning that Ms H suffered in the High Court.
She was "made to suffer the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion". Likewise, in order to defend a delictual claim based on adultery, the third party is placed in the invidious position of having to expose details of his or her intimate interaction - including sexual relations - with the adulterous spouse.
That goes to the core of the private nature of an intimate relationship. Marriages are founded on love and respect, which are not legal rules, and are the responsibility of the spouses themselves. In the present case, the breakdown of the marriage was as a result of a failure by the spouses themselves to sustain their marriage and thus it would be inappropriate for the courts to intervene.
The court also held that "The law cannot shore up or sustain an otherwise ailing marriage. It continues to be the primary responsibility of the parties to maintain their marriage. For this reason, the continued existence of a claim for damages for adultery by the "innocent spouse" adds nothing to the lifeblood of a solid and peaceful marriage".
Prior to 25 September 2014, the aggrieved ex-spouse could proceed with a claim in delict against the third party lover for damages he or she sustained because of an adulterous relationship committed by the other spouse and the third party.This claim targeted the third party who caused the break up- not at the spouse himself or herself.
Prior to the SCA's ruling, I often found that adultery played a key role during any negotiations or settlement discussions between divorcing clients facing this particular scenario. A spouse who was in an adulterous relationship was often willing to settle on terms less favourable to him or her, simply to avoid the threat of the lover being sued for alienation of affection. Sincethe abolition of adultery in September 2014, however I have noticed a distinct reduction in how much the "guilty" spouse to prepared to give to the "aggrieved" spouse when it comes to a division of assets of the parties and monetary awards etc.I think that trend is very likely to continue into the future.
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