Die regsrelevansie van owerspel: quo vadis?
Authors J Neethling, JM Potgieter
Affiliations: Affiliated with the University of the Free State; Affiliated with the University of South Africa
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 1, 2019, p. 63 – 77
THE LEGAL RELEVANCE OF ADULTERY: QUO VADIS? At common law, adultery constituted an actionable iniuria against the innocent spouse. In RH v DE and DE v RH the supreme court of appeal and the constitutional court made a radical turnabout. On the basis that the court has a duty to develop the law in accordance with contemporary boni mores as delictual criterion for wrongfulness and the bill of rights, both courts came to the conclusion that, in the light of the boni mores, adultery can no longer be regarded as wrongful, and that it may accordingly no longer ground the actio iniuriarum. This conclusion is supported by the majority of South African writers and most Western countries. Some of the other reasons for this finding were found to be as follows: the origin of the action is archaic as the husband was considered to have some proprietary interest in his wife and, later, because of the view that both husband and wife were entitled to the sole use of each other’s body; it is a clear anomaly that the action is available against the third party only and not against the adulterous spouse; the action for adultery does not protect the institution of marriage and also does not have a deterrent effect against adultery; even though the innocent spouse’s feelings (of dignity) may be subjectively infringed by the adultery, a reasonable person would not be hurt by the adultery and it is therefore not wrongful; the hurt and harm brought about by the action (for example, for the children involved and the defendant) would far outweigh the advantage which the action may have for the innocent spouse; and the constitutional rights to freedom and security of the person, privacy and freedom of association of the adulterous spouse and the third party do not necessarily weigh less than the right to human dignity of the innocent spouse just because they have committed adultery. Nevertheless, adultery remains relevant where the circumstances surrounding the adultery were of such a nature that it may be regarded as an actionable iniuria. Thus, adultery-related conduct which is of an insulting nature or infringes the victim’s feelings, should in appropriate circumstances amount to the iniuriae insult and injury to feelings. Furthermore, an allegation that a person committed adultery, should in principle constitute actionable defamation. The action for pain and suffering should also remain available where the conduct relating to adultery causes, for example, emotional shock with accompanying psychological lesion. In addition, the innocent spouse should be able to institute a claim with the Aquilian action for patrimonial loss, such as expenses for the supervision of the household and children. Adultery also remains relevant for divorce law as it may still indicate that the marriage has broken down irretrievably and can be taken into account as a factor affecting the redistribution of assets and the forfeiture of patrimonial benefits. Finally, it is submitted that enticement (which is often accompanied with adultery) should be retained in our law as an independent cause of action. Although the legal condemnation of adultery has softened manifestly, marriage fidelity is still highly regarded on the basis of the community’s moral and religious convictions. Accordingly, marriage infidelity as a result of adultery is still condemned and considered blameworthy on such grounds. It is therefore understandable that adultery remains relevant in certain areas of the law as well, as pointed out in this contribution.