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Adultery law and damages

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This week’s topic is a fulfilment of a request to revisit a previous article I once wrote on adultery damages. There were questions over a statement I made last week that one of the remedies an aggrieved spouse can pursue is a claim for adultery damages.

Rights: MIRIAM TOSE MAJOME

Adultery damages serve to compensate the betrayed spouse for the loss and pain they endure as a result of the adultery
Adultery damages serve to compensate the betrayed spouse for the loss and pain they endure as a result of the adultery

Adultery damages is money that is paid as compensation to a spouse who has been cheated on by the other spouse. The money is claimed from the spouse’s alleged lover who has supposedly disturbed the marriage nest.

A 2016 High Court ruling between Njodzi vs Matione served as a reminder that in Zimbabwe adultery laws have not been affected by changing global attitudes and foreign laws.

In Zimbabwe adultery is still regarded as a very serious infringement to the marriage institution by third parties. Adultery damages serve to compensate the betrayed spouse for the loss and pain they endure as a result of the adultery.

There is the pain of betrayal, hurt feelings, potential divorce and break up of families including the threat of sexually transmitted diseases spread to unsuspecting innocent spouses.

However, bad it might be perceived or damage it may wreak, adultery is not a crime. It is not possible to be arrested for committing adultery. A betrayed spouse’s only recourse is to seek monetary compensation for two major losses ,namely contumelia and consortium.

Contumelia

This is the emotional injury suffered. Heartbreak, loneliness, betrayal, pain, shock, hurt, insult, indignity and generally indescribable emotional anguish . The late cold lonely nights, weekends and holidays spent alone, untouched suppers, ignored phone calls and taunting calls from lovers.

The loss of a spouse to another is painful and shatters dreams and homes. The level of humiliation, embarrassment and pain endured by the cheated spouse determines the award given.

Did Uncle Francis really have to add insult to injury by posting photographs of his weekend tryst with another man’s wife on his Facebook wall? In factoring any compensation the court will consider the level of impunity and disregard of the feelings of the cheated spouse.

It is one thing to make off with another person’s spouse, but it is quite another to do it with impunity.

In the rule book of breaking marriage vows and wrecking marriages there must be a chapter on how to do it gracefully and humanely.

Consortium

These are damages awarded for loss of love, affection and the comforts supposedly found in marriage. These comforts and benefits are purportedly stolen by spouse grabbers.

How grown up men and women can be so routinely stolen in broad daylight without a whimper from them remains one of the wonders of the modern world.

Consortium is founded upon the idyllic notion that married couples live in perpetual bliss and love so this matrimonial nirvana and romantic perfection is what the law seeks to safeguard and protect.

Loss of consortium also refers to the loss of conjugal rights meaning the sexual rights of a marriage. Sexual unfaithfulness is the breaking point of most marriages.

Global perspectives

In many modern societies including South Africa adultery damages have been dispensed with. They are increasingly viewed as archaic and incompatible with a modern free thinking society. Adultery damages are no longer viewed as necessary to protect the marriage institution.

Love, respect, faithfulness and trust are the foundations of marriage and not legal rules and threats. It is incumbent upon the spouses themselves to protect and safeguard their own marriage from any potential home wreckers.

The alleged home wrecker is not party to the marriage contract between the two people. He or she never vowed or pledged to be faithful or safeguard anyone’s marriage.

They have no legal responsibility to uphold any other person’s marriage vows. The adulterous spouse should be held accountable for breaking his or her own marriage vows.

This thinking was upheld by the 2014 South African Supreme Court in the case of RH v DE (594/2013/2014) thereby abolishing adultery damages in South African law. However in some countries such as Saudi Arabia, Pakistan and Somalia adultery remains a crime and can be punishable by death usually of the woman.

Adultery damages traditionally

The type of marriage contract determines the claim. In a civil marriage Chapter 5:11 both spouses can sue for adultery because this marriage is strictly monogamous either way. In a registered customary marriage Chapter 5:07 only the husband can claim damages because the marriage is potentially polygamous and only he is allowed to stray from the marital bed.

There is a very thin line if at all between promiscuity and polygamy. The man has to find fresh wives somehow so he has to go out and hunt for them and that is not cheating so the new women cannot be sued for adultery.

However, if one of the wives in a polygamous union strays into another man’s bed that is adultery. Similarly in an unregistered customary union where only lobola has been paid the cheated husband can drag his wife’s lover to a chief’s court and claim compensation from his wife’s lover.

If he gets really excited and dramatic in front of the captive village audience he can return the damaged goods and demand a refund from the embarrassed in laws.

Deciding the award

The court will consider all the circumstances that were prevailing in the marriage at the time the adultery was committed. If the adultery was such that it ruined the marriage then obviously the award will be appropriately high.

If the marriage had broken down before the onset of the adultery and the couple was already separated the award will be less. In that case the injured spouse can only sue for injured feelings and not for loss of love and affection because those feelings no longer existed.

Adultery damages are typically nominal and are not meant to enrich the injured spouse. The action for adultery damages is not meant to bring the ‘stolen’ spouse back and it can never do that. Nothing cannot even the strongest Malawian love portion advertised in the classifieds that declares- ‘’Bring back lost lover!’’

Once they are they are gone. They can only return on their own if they ever decide to. Some have been known to return years later doing the whole prodigal spouse act begging pitifully to return home broken and broke, coughing and spluttering all over the place.

The damages can be less if the cheating spouse is proved to have a history of cheating and habitual infidelity.

It may also help if the sued party shows contrition or genuinely did not know their lover was married as without sight of a marriage certificate it is difficult to prove the existence of a marriage.

It is not romantic or a done thing to demand a divorce order or death certificate on a first date or in the first days of the heady rush of new love. However, it could save a future lawsuit, lots of money and embarrassment.

Miriam Tose Majome is a lawyer and a teacher. She can be contacted on enquiries@legalpractitioners.org

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