Court asked to put a price on adultery
Jilted man asks Constitutional Court to make wife’s lover pay
THE price of having an extramarital affair is to be set by the highest court in the land.
A jilted Pretoria man who failed in his bid to sue his former wife’s lover has resorted to petitioning the Constitutional Court.
Divorce lawyers this week said that divorce settlements that favoured the purportedly aggrieved party in adultery had become less common since the Supreme Court of Appeal dismissed the Pretoria man’s claim.
The court said that the provision in law for the pursuit of civil damages for adultery was “archaic”.
But Dave Smith, the advocate acting for the Pretoria father of two, said he was confident of success in the Constitutional Court. Heads of argument were filed in January.
“It is encouraging in the sense that [the court] has asked us to file heads of argument dealing with the application for leave to appeal.
“We are waiting for a date,” said Smith.
His client, said Smith, was not interested in money but wanted his former wife’s lover to be held responsible for the collapse of their marriage.
“He was very hurt by the adultery committed with his wife.
“I think the whole of South Africa believes that the Supreme Court of Appeal has got the morals of our society completely messed up.”
The applicant, who is referred to as “DE” in court papers, claimed R75 000 in damages from the man referred to as “RH”, his former wife’s boss, with whom she had an affair.
Their identities have been concealed to protect the divorced couple’s children.
In his heads of argument DE claims that the Supreme Court of Appeal ignored the constitutional principle that family and marriage were intrinsic values in the constitution. “They form a fundamental part of the right to dignity and therefore form part of the founding values of the constitution.”
The High Court in Pretoria had earlier ordered RH to pay damages, as well as both parties’ legal costs, but the ruling was overturned by the Supreme Court of Appeal.
RH has opposed the application for leave to appeal to the Constitutional Court.
Steven Kuny, the advocate representing RH, said the Supreme Court of Appeal decision should have brought the matter to finality.
“Marriage is a relationship founded on the commitment of the parties to maintain and nurture the relationship. Adultery is a symptom of a breakdown in the marriage and not the cause,” he said.
“Most often litigants use the adultery factor as a weapon against their spouse and then sue the third party. They use it to force the other party to settle with them.
“The other party settles because they don’t want the embarrassment or they feel ashamed of their conduct,” said Kuny.
Divorce lawyer Bertus Preller agreed with the Supreme Court of Appeal ruling, saying the law allowing damages claims against a third party for adultery was “ancient”. “If the parties to the marriage have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that,” he said.
Preller posted a newsletter on Facebook about divorce and adultery that elicited a wide range of responses.
One comment said: “Our courts cannot do away with morality and condone immorality; what’s wrong is wrong.”
Another read: “I find it really unfair to rule over the third party when in fact the spouse is also to blame for adultery. The
Most often litigants use the adultery factor as a weapon
blame can’t squarely be put on the third party alone.”
But the ruling might have lessened the burden on adulterers, according to some divorce lawyers, who are now holding out and refusing to agree to the terms of settlements.
Attorney Fawzia Khan said: “Prior to the Supreme Court of Appeal ruling I often found that adultery played a key role during any negotiations or settlement discussions between divorcing clients facing this particular scenario.”
Since the Supreme Court ruling, Khan said, she had noticed a distinct reduction in the amount the “guilty” spouse was prepared to give the “aggrieved” spouse.