Adultery is no longer part of South Africa law. A spouse whose spouse has been cheating may no longer sue the “third party” for damages.

A unanimous decision of the Constitutional Court in June 2015 says that marriage is based on the concept of two willing parties and where the relationship breaks down it is not appropriate for the law to intervene in the parties’ intimate personal affairs.

Justice Mbuyiseli Madlanga, writing for all members of the court, said the court viewed marriage as an institution worthy of protection, but that while the sanctity of marriage was recognised, the ‘conception’ of marriage had changed, as had the ‘punitive extremes’ to which the law would go to protect it.

‘(In) this day and age it just seems mistaken to assess marital fidelity in terms of money.’ said the Court.

A recent ruling in which it was ordered that an adulterous wife must forfeit part of her claim to her husband’s much larger estate because of her numerous adulterous relationships (‘substantial misconduct’) is being taken on appeal. Two judges of the Gauteng High Court (Pretoria) ruled there was merit in the wife’s argument that section 9(1) of the Divorce Act was wholly outdated and unconstitutional.

This was because it punished a party for ‘substantial misconduct’ by depriving him or her of benefits of the marriage without proof of how such conduct may have impacted on the estate. 

However Acting Judge Ishmael Semenya and Judge Mabel Jansen ruled that the wife must join the Minister of Justice and the Speaker of Parliament in the litigation, as the court was not empowered to declare the provisions of the Act unconstitutional without the correct procedure being followed.

There is will probably be a long technical road ahead before we have a final ruling, but the outcome will be of interest to many who are married either in community of property or out of community with application of the accrual system.