Is Adultery Legal in South Africa
In Wiese v. Moolman in 2009, adultery was defined as voluntary sexual intercourse between a married person and a person who is not their spouse. Previously, an offence of adultery was recognized in South African law, but the aggrieved spouse could only sue the third party for damages and not the adulterous spouse. The amount of damages claimed was determined taking into account various factors, such as: the income of the spouses; and if, for example, a spouse neglected his partner, exposing him to temptation. The SCA asked both lawyers to deal with them on whether adultery should continue to be part of the law, taking into account our prevailing social morality, the constitution, and the concept of marriage as an institution. During sentencing, Judge Brand, along with 4 other judges, who also agreed, decided, “The time has come for the abolition of adultery.” The judge in this particular case said: “I leave the durability of their existence (other marriage-related offences) as the subject of the examination for another day. the continuation of the claim based on adultery against a third party for the financial loss suffered by the innocent spouse as a result of the loss of the adulterous spouse`s consortium, which would include, for example, the loss of supervision of the household and children”. More recently, South Africa has not had a guilty divorce and therefore there is no penalty for conduct. It is strange that at the same time it was still possible to claim damages for adultery.
Adultery has been decriminalized in many parts of the world, such as parts of Europe, America, South Africa and China, but it is often cited as a reason for marriage breakdown. In some Asian countries such as India, Korea, the Philippines and Taiwan, as well as in Muslim countries, adultery remains a crime, with various types of penalties imposed on the culprits. In Islam, it is forbidden for a person to make such accusations of adultery without having substantial and convincing evidence to do so. According to Islamic jurisprudence, the standard of proof is extremely high and a prosecutor must present eyewitnesses, each of whom should have a reputation for truthfulness and honesty. Extramarital affairs are illegal if they result in divorce in North Carolina and six other U.S. jurisdictions. In South Africa, you cannot sue for adultery, but the courts are free to hear other lawsuits related to the breakdown of a marriage. The only way that the people of the day should do is to turn to God. When wife and husband respect and trust each other, no one can like to have six outside of marriage. The Bible also does not allow divorce, but it says, “Because of a hardened heart, therefore Moses allowed a certificate of divorce,” we can learn much from the Bible that even some noble leaders divorced and remarried. I do not promote adultery and I do not advocate divorce. True love is based on respect and mutual trust.
Legal history was made on September 25, 2014 when the Supreme Court of Appeal (SCA) ruled that compensation for damages caused by adultery could no longer be claimed. Adultery is now abolished. In RH v. DE, a man “D” sued his wife “R” lover because he was insane from his wife`s affection and was in an adulterous relationship with her. The High Court had previously ruled in favour of the ex-husband and ordered lover R to pay R75,000.00 in compensation. However, “R” denied responsibility for the separation and appealed the case to the FCC. A concurring decision by Chief Justice Mogoeng Mogoeng and Justice Edwin Cameron emphasized that marriage depended on the parties` obligation to respect it, not on the continued existence of a claim for damages for adultery by an “innocent spouse.” The judge held that section 39(2) of the Constitution requires the courts to develop the common law in a manner that promotes the spirit, content and objectives of the Bill of Rights. It held that courts should adapt the common law to reflect “the changing social, moral and economic fabric of society.” “Adultery has lost its social substrate.” He said it was doubtful that these adultery allegations had had a chilling effect on society as a whole, noting that if a marriage is good, it is unlikely to be broken by third parties.
Justice Brand said that many other countries have abolished adultery and that the time has come for our law to take into account the changing “customs” of our society. The FCC also found that it was not in the best interests of the young children of the marriage to be exposed to harmful publicity and emotional trauma that manifests itself in acts of adultery. The court found that the ex-husband was motivated by anger at his wife over the breakdown of their marriage. “Thus, instead of being moved by a need for comfort and closure, the action was motivated by a negative and destructive desire for revenge.” “Marriages are based on love and respect, which are not legal rules and are the responsibility of the spouses themselves. Could the creation of infidelity laws in South Africa really deter people from committing adultery? The idea that someone will remain faithful to you because the law requires it could be somewhat reassuring or mean that you don`t know if your spouse is committed to you out of love or simply obligation. During this time, however, adultery was grounds for divorce. Riva Lange, a family lawyer at Riva Lange Rechtsanwälte, explains: “On 25 September 2014, the Supreme Court of Appeal abolished the adultery offences in the 2013 case RH v. DE. However, the court clarified that at a later stage and through another court, it leaves open “other actions based on actio iniuriarum (tort action to protect the dignity, reputation and physical integrity of a person) relating to or related to the institution of marriage, such as the kidnapping suit, attracting and harbouring someone`s spouse”, Riva said.