The court unanimously upheld a ruling by the Supreme Court of Appeal which abolished claims based on adultery as outdated and no longer sustainable.
The ruling follows a lengthy legal battle by a husband, known only as DE, who sued his former wife’s new lover, RH, for the insult to his personality and the loss of the comfort and society of his spouse.
The High Court in Pretoria initially ruled that he could claim for the insult to his personality, but that dismissed his claim for the loss of comfort and society of his wife because there was no evidence that the adultery had caused the breakup of his marriage.
RH appealed and the Appeal Court ruled that in light of the changing values of our society claims based on adultery be abolished.
DE turned to the Constitutional Court for relief, arguing that the claim served to protect non-adulterous spouses’ dignity and to preserve the institution of marriage.
RH maintained society no longer considered a person’s dignity to be infringed when his or her spouse had committed adultery.
The Constitutional Court found that the global trend was moving towards the abolition of civil claims based on adultery and said it was clear that attitudes towards the legal sanction of adultery have been softening.
“….Because times are changing the law – though still recognising the sanctity of marriage – has moved with the times both in tis conception of the institution of marriage and the punitive extremes to which it will go to protect it.
“…In this case, the marriage deteriorated without obstruction or intervention by the law.
“…It is one thing for the law to protect marriages by removing all legal obstacles that impede meaningful enjoyment of married life.
“It is quite another for spouses to expect the law to prop up their marriage which – for reasons that have nothing to do with the law – is weakening or
“…Love and respect are foundations of a solid marriage and not legal rules. Those are within the control of the spouses themselves. After all, it is they who undertook to be truthful an faithful to each other,” Judge Mbuyiseli Madlanga said.
The court ruled that maintaining the claim in our law would infringe various rights of adulterous spouses and the third parties, including their rights to dignity and privacy.