Following the publication of the story of a woman who challenged adultery laws in the Chronicle, many of our readers wanted to know how the law on adultery works. Keep reading for a brief explanation on laws about adultery.


What is adultery?

Adultery occurs when two people have sexual intercourse and one or both of them are married to someone else at the time that they have sex. In other words, adultery is when a married man has an affair with another man or woman or when a married woman has an affair with another man or woman.

Our courts have not heard an adultery case in which the cheating spouse was having an affair with a member of the same sex. This could be because same sex relationships are considered a crime and same sex relationships are largely stigmatised. Reporting one’s spouse for having an affair with a member of the same sex would not only land them in jail (especially if it is the man for homosexuality) but would also bring disrepute on the other spouse, disrepute that does not come from an affair with a member of the opposite sex. These attitudes are part and parcel of a homophobic legal system (a system that punishes people for having a different sexual orientation) fuelled by a society that is also largely homophobic (a society that ill-treats and stigmatises anyone who is of a different sexual orientation from what is considered to be the norm).

Why does adultery exist in our law?

The legal personal argument

Adultery exists to compensate the injured individual. They are compensated for two things contumelia and lack of consortium. Contumelia is equated to the injury, hurt, insult and indignity suffered by a spouse whose partner commits adultery with another person. Damages for contumelia look at the levels of disrespect, embarrassment and humiliation suffered by a person due to the lack of regard for their feelings by the other person when they chose to wreck their marriage. Consortium refers to the damages awarded for loss of love, affection and all the comforts of marriage taken from the injured by the wayward partner when they engaged in an extra-marital affair. It also includes the loss of conjugal rights (the rights regarded as exercisable in law by each partner in a marriage, including sexual rights).



The legal- social argument

Adultery exists to protect the family. The third party is targeted and frowned upon for deliberately trying to destabilise a family set-up. In the case of Khumalo v Mandishona[1], then High Court Judge, Justice Malaba, said, “the courts play a vital role in preserving the institution of marriage and should punish accordingly those who find pleasure in promiscuity.”

The idea is that, if a person knows that they are having an affair with a married man or woman, they should pay the costs of trying to steal another person’s spouse when they are discovered.

However, society’s attitude towards adultery seems to have changed. Adultery is no longer viewed as harshly as it once was, especially for men. The phenomenon of “’ small-houses” is common and almost accepted as normal. A lot of people are also challenging why the third person is punished when one could argue that the responsibility lies with the married couple to protect their marriage.

Who can be sued?

In adultery claims, only the third party can be sued. For example, if Constantine is married to Jocelyne and Constantine has an affair with Mary, Jocelyne can sue Mary as the third party for having an affair with her husband. The law requires that the adulterer or adulteress must know that the other person is legally married. If Mary did not know that Constantine was married then Jocelyne’s case will not succeed.

Who can sue for adultery damages?

This will differ depending on the type of marriage that the married couple was in. If the couple were in a civil marriage [Chapter 5:11], then the husband or the wife can sue the third party in the civil courts when their partner commits adultery. If the couple are in a registered customary marriage [Chapter 5:07] only the husband can sue for adultery in the civil courts. This is because this marriage is potentially polygamous so when a husband has relationships with other women, he is not considered as cheating but simply fishing for wife number 2, 3 or 4 as the case may be. If the couple are in an unregistered customary law union, that is to say the man paid lobola only and their marriage is not registered, only the man can claim for damages in the customary law courts. Again, this marriage is potentially polygamous and the woman has no right to sue for adultery damages.

How does the court decide on the amount of adultery damages to be awarded?

The court will look at a number of factors to decide how much someone claiming adultery damages should get.

1. The court will look at the state of the marriage at the time of the adultery; if the adultery has damaged the relationship beyond repair the injured spouse is likely to get more damages. If the injured spouse forgives their partner and they work on the relationship then the amount of damages awarded may be reduced. If the married couple reconciles and work on the marital relationship the injured spouse can only claim for hurt feelings and insult but not for loss of love and affection. If the marriage had broken down before the adultery and the couple were not getting along even before one of them started cheating, the injured person can only claim for damages for injured feelings and not loss of love and affection.

2. The court will look at the imprudence or insult. If the third party, who was having an affair with the married person publicised the relationship and made sure the spouse knew, or even texted and called the spouse while at home to annoy the other spouse, or called the other spouse when their partner was not home to say, they were with a lover, this will increase the damages. If the third party being sued tried to keep the relationship a secret then the damages may be less.

3. The court may also look at the character of the spouse involved; if the spouse is a serial cheater then the culpability of the third party is less.

4. The Court will also assess whether the third party has shown remorse or contrition. If a person being sued does not show any signs of being sorry for their actions, for instance if they disregard the court proceedings, or reply to the summons and in their response blame the injured party for the breakdown of their marriage, this may increase the amount of damages.

5. The court may also assess whether the third party took any care to protect the injured spouse from contracting HIV from the errant spouse. The court considers that when a spouse cheats, they can possible infect their innocent spouse with HIV or other STIs.


Other facts about adultery you should know

Adultery and divorce

Adultery is a recognised as one of the factors that could be argued to satisfy the requirement that a relationship has irretrievably broken down which is a ground for divorce. In other words, a person who wishes to get a divorce can show the court that a marriage has irretrievably broken down on the basis that they or their spouse have committed adultery.

Adultery and Custody

A parent who leads an “immoral life” may be deprived of custody. However simply because a person has committed adultery does not make them a bad parent justifying why they should be denied custody.

Adultery and Maintenance

In the case of divorce or separation, if the parent who has custody of the children commits adultery, or the divorce is a result of their infidelity, this does not mean that the spouse who was cheated on should not pay maintenance.