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Adultery
A marriage creates an association in which companionship, love, affection, comfort mutual services
and sexual intercourse are part. The law prohibits interference from third parties. Both the husband
and the wife can have these rights of association protected. If someone encroaches on these rights
the spouse who is affected by it can sue the third party for adultery, enticement or harbouring. The
innocent spouse cannot sue the guilty spouse and neither can the guilty spouse be stopped by the
court from committing adultery. The reason for this is that our constitution allows for freedom of
association and this would be unconstitutional But there is no question of an aggrieved spouse bring
an action against the guilty spouse and neither can the guilty spouse be confronted with an interdict
to restrain her adultery. The courts still have to decide if the common law cases constitute an
infringement of the right to freedom of association but I think they do.
There are two grounds on which one can claim damages form the adulterer. The first is because of
the injury caused to the innocent spouse. The second ground is the loss of the companionship , love
comfort , mutual services and sexual intercourse.
An action for enticement has been recognized as part of our law and it protects the association
between spouses from the destruction by a third parted. The aggrieved wife or the aggrieved
husband can bring the action. The party bringing the action would have to prove that the adulterer
knew that the parties were married and the object of the enticement was to deprive the innocent
party of his rights in respect of his wife/husband.
Damages for enticement can be substantial because an adulterer should realize that he cannot
seduce a married man or married woman from their duty to their husband or wife.
Habouring is essentially detaining a person without her consent. If a woman is offered shelter when
her husband has locked her out of the common home this would not constitute harbouring and no
damages could be recovered. It is only harbouring if the accommodation is granted against the
husband’s will. It is not necessary to allege that the wife was living apart without her husband’s
consent.
Adultery may be defined as voluntary sexual intercourse between a married person and someone
other than his or her spouse. In law, both the married person and the lover are adulterers. Adultery
used to be one of two grounds for divorce in South Africa, the other being malicious desertion. The
Divorce Laws Amendment Act, 1935, added two further grounds - seven years' incurable insanity
and imprisonment for five years after a declaration of habitual criminality.
Major changes were introduced in the Divorce Act, 1979. It is now unnecessary to prove that one of
the parties has committed a 'matrimonial offence' such as insanity, desertion or adultery in order to
obtain a divorce.
There are at present only two grounds for divorce. These are the irretrievable breakdown of the
marriage, or the mental illness or continuous unconsciousness of one of the spouses. The
irretrievable breakdown may, however, be caused by the adultery of one of the partners.
The innocent spouse may bring an action for damages against the third person (the 'co-respondent'),
with whom the adultery was committed, even if divorce proceedings are not instituted.
However, a third party who was unaware that the other person was married, cannot be sued, as the
action is based on deliberate interference with the right of association of a husband and a wife.
Damages are awarded on the basis of the insult caused to the innocent party and of the loss of
consortium. Compensation may be claimed for financial loss caused by break-up of the marriage, as
well as for the loss of the affection of the other partner. The court will consider the couple's
financial and social situation, their moral reputation and the state of their relationship before the
adultery was committed.
When the innocent spouse's behavior was partly responsible for driving his or her partner into
another person's arms, the damages awarded will be considerably lower. If the co-respondent
behaves particularly callously towards the innocent partner - for example, if she entices a husband
away from his wife and lives openly with him, pretending to be his wife - damages will be
increased.
An action for damages may be brought by the innocent party only within three years of learning
about the adultery of his or her partner. An innocent party may not take the law into his or her own
hands. For example, a husband may not lock his wife up to prevent her from seeing her lover.

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