guest column Miriam Tose Majome
A COMMON assertion is that the proposition to protect the rights of cohabiting couples in the imminent Marriage Bill automatically nullifies the concept of adultery.
However, this is not true because in 2016, the High Court firmly reiterated that adultery is still unlawful under Zimbabwean law.
Most international jurisdictions, including South Africa have abolished punishment for adultery. The impression that adultery will no longer be unlawful when the amended Marriage Act is passed stems from the proposal to recognise the civil partnerships of people who are married to other people.
However the proposal to protect the rights of cohabiting partners is not meant to demolish or diminish the legal status of marriage, but simply to protect other people’s rights. Despite the recognition of cohabitation as a legal entity, it is still unlawful to have extra marital relations with married persons.
Cohabitation does not automatically imply an adulterous union. If the Bill becomes law, aggrieved spouses will still be able to claim damages from their spouses’ lovers. Adultery damages compensate the injured spouse for pain and the loss of love and companionship.
The injured party is compensated for contumelia and consortium. Contumelia is the emotional injury suffered by the cheated spouse to compensate for the betrayal, pain, shock, hurt, insult and the indignity emmanating from the act of adultery.
It is to compensate for the late nights and weekends, the untouched suppers, suspicious calls and chats at odd hours. The damages quantum depends on how much the aggrieved spouse is able prove the inconvenience suffered.
The court also considers the lack of regard for the feelings of the cheated spouse. Some girlfriends and boyfriends may even taunt the spouse through awkward calls or the posting of indelicate photographs on social media platforms.
Loss of consortium refers to damages awarded for loss of love, affection and comforts supposedly found in a marriage. The law seeks to protect and restore the peace and harmony of matrimony. Loss of consortium includes loss of conjugal rights attendant with marriage.
The judgment was a reflection of Zimbabwean society’s conservative views. Other societies now regard punishing people for adultery as an archaic practice which is incompatible with modern and free-thinking societies.
Adultery damages are no longer regarded as necessary to protect the marriage institution. Love, respect, faithfulness and trust — not legal rules — are regarded foundational marriages.
The spouses themselves have the onus to protect and safeguard their own marriage and that third parties have no legal responsibility to uphold and protect other peoples’ marriage vows.
It is adulterous spouses who should be held accountable for breaking their own marriage vows. This was the view upheld by the South African Supreme Court in RH v DE (594/2013/2014) when it abolished adultery damages.
Despite the relaxation of adultery laws and attitudes halfway across the world, conservative views are still entrenched in other communities. In Saudi Arabia, Pakistan and Somalia, adultery is still a criminal offence punishable by death. The married women receive more severe punishments for adultery than married men.
In civil marriages, both spouses can sue their spouses’ civil partners for adultery. In registered customary marriages only the husband can claim damages since the marriage is potentially polygamous.
In polygamous relationships there is a very thin line between promiscuity and cohabitation. If a customarily married man can marry more than one wife, he has to go out and engage in extra-marital relationships.
However if a wife in a polygamous marriage strays, that will be adultery and the husband will be entitled to compensation from his wife’s lover. In an unregistered customary union, where lobola has been paid, the cheated husband can claim damages from his wife’s lover.
The courts will consider all the circumstances that were prevailing in the marriage at the time the adultery was committed. The adultery could have been committed through a civil partnership and if it was such that it ruined the marriage the award will be higher. If the marriage had ended in all but name before the onset of the adulterous civil partnership,
the award will be less.
In practice, adultery damages are nominal and not meant to enrich the injured spouse. They also cannot help restore normal marriage relations between the spouses.
If the cheating spouse has a history of cheating which the other spouse knew about, it will result in a lesser award. In conclusion, protecting civil partnerships does not eradicate the concept of adultery and claiming adultery damages.