How Does Adultery Affect Divorce In South Africa?
Divorce can be a daunting process, and understanding how adultery impacts divorce in South Africa can help navigate this challenging time. The legal landscape in South Africa supports a “no-fault” divorce system, which ensures that no one spouse is deemed to be at fault when it comes to divorce proceedings. So, how is divorce affected by adultery in South Africa?
Adultery in South Africa can still be a reason for divorce due to the irretrievable breakdown of a marriage, despite the no-fault divorce system. However, this does not necessarily mean you can get compensation or have the right to a more significant portion of the marital assets.
Navigating a divorce is challenging, and adultery adds another layer of complexity. To help you along this new terrain, we will explore how adultery and the no-fault divorce rule intersect in South Africa, the historical context, recent legal changes, and the implications for families, especially children.
Adultery And Divorce In South Africa
In South Africa, adultery is cited as one of the grounds for the irretrievable breakdown of a marriage, as per the Divorce Act 70 of 1979. While the country operates under a no-fault divorce system, where proving fault is unnecessary, adultery remains one of the primary causes of divorce.
The act states that a marriage has irretrievably broken down if the parties cannot continue with a normal marriage relationship. A person can demonstrate this breakdown by showing that their spouse has committed adultery, and due to this, they can no longer continue in the marriage.
What Is The No-Fault Rule?
In 1979, the Divorce Act introduced a no-fault divorce system into South Africa’s divorce law. This significant change removed adultery as a ground for divorce. Before 1979, adultery was one of the three grounds for divorce, and it attracted financial penalties for the unfaithful spouse. This principle was based on the idea that a spouse should not gain financially from a marriage that they had wrecked through their matrimonial delinquency.
A no-fault divorce system means the court does not need to determine who is at fault for the marriage’s collapse. Neither spouse is held accountable for the marriage’s failure. If one spouse believes the marriage is irreparably broken, the court can start divorce proceedings without the other spouse’s consent.
In South Africa, only two grounds for divorce are recognized: the irretrievable breakdown of the marriage and the mental illness or ongoing unconsciousness of one of the spouses. While adultery alone is not a separate ground for divorce, it can be evidence of the irretrievable breakdown if one spouse finds it impossible to continue the marriage relationship because of it.
How Has Adultery And Divorce In South Africa Been Viewed Historically?
Historically, adultery was a significant reason for divorce in South Africa. Up until 25 September 2014, a wronged divorcing spouse could sue the third-party lover who was involved in the marriage breakdown. The third party could be sued in delict for damages on the grounds that they committed adultery, alienating the affections of the other spouse.
The aggrieved spouse could claim damages for ‘contumelia’ (insult suffered) and ‘loss of consortium’ (loss of the society and comfort of a spouse). To succeed, one had to prove that the marriage was good and that the third party enticed away the affection of the guilty spouse. The damages would be based on suffering an injury to one’s name, dignity, reputation, feelings, and mental tranquillity.
Proving such claims was challenging, especially if the relationship had existing issues before the third party entered the picture. Nevertheless, there have been several cases where the aggrieved ex-spouse successfully sued the lover and was awarded monetary compensation, albeit often less than what they claimed.
Such a claim could be brought regardless of sexual orientation (after the Civil Union Act 17 of 2006), gender, or whether the aggrieved spouse brought divorce proceedings against the guilty spouse.
Adultery And Divorce In South Africa: 2014 Decision Of The Supreme Court
A landmark decision by the Supreme Court in 2014 significantly altered the legal landscape regarding adultery and divorce in South Africa. In the case of RH v DE, the court abolished the right to sue a third party for adultery, ruling that such claims no longer aligned with contemporary societal norms and constitutional values.
The Constitutional Court upheld this decision, emphasizing that holding a third party liable for adultery infringed on individual rights to privacy, freedom of association, and personal security. The court noted that the obligation to maintain and protect the marriage lies primarily with the spouses, not the legal system.
It highlighted that love, respect, and fidelity are the foundations of a marriage, which legal rules cannot enforce. By removing the right to sue for adultery, the court aimed to reduce the emotional and financial toll of such actions. It acknowledged that modern society no longer views adultery as a wrongful act deserving of legal punishment.
The ruling also recognized that allowing these claims could lead to abusive litigation tactics, with spouses using them as leverage in divorce settlements. The court’s decision marked a significant step towards modernizing South African family law by aligning with international trends and reflecting changing societal values. This shift underscores the evolving understanding of marriage, emphasizing personal responsibility over legal retribution.
Adultery And Divorce And Its Effects On Children’s Well-Being
The impact of adultery and divorce in South Africa on children’s well-being is a crucial consideration. Divorce, especially when infidelity is involved, can create a tumultuous environment for children. They may experience confusion, insecurity, and divided loyalty between parents.
It’s essential to address these issues sensitively and seek professional help, such as counselling, to support children’s emotional and psychological health during this challenging time. A stable and supportive environment can mitigate the adverse effects and help children navigate the changes more effectively.
Adultery remains a significant factor in divorce in South Africa despite the no-fault divorce system. Understanding the legal context, historical background, and recent changes is essential for anyone navigating this complex process. If you’re considering divorce due to adultery, it’s crucial to be informed about your rights and the potential implications.
Legal advice from experienced professionals can guide you to make informed decisions and help protect your interests during this challenging time. At Burnett Attorneys and Notaries, we are experienced in all aspects of family law, including divorce and its associated legalities. If you are looking for a divorce attorney to handle your case with care and sensitivity, please don’t hesitate to contact us.