Adultery is known for a fact as having voluntary sexual relations with a party who is legally married other than your spouse.
According to the bible adultery is considered a sin, however in the eyes of the law it is a breach of contract.
In terms of the law Marriage is a contract sui generis (of its own kind) entered into by two willing parties.
In Zimbabwe, Civil Marriages is governed by the provisions of the Marriage Act [Chap 5:11] now the Marriage Act [Chap 5:17].
It is a monogamous marriage meaning that it is between one husband and one wife.
Neither of the parties is permitted to have any other spouse apart from the one they are married to under the Act for as long as the marriage subsists.
Parties to this marriage are automatically forbidden to engage in any sexual relationships with a third party while still legally married.
Technically parties in the subsisting marriage are in a contractual agreement and according to the requirements of a contract agreement, capacity, consideration, and intention, makes it valid.
Therefore the contractual obligation of the marriage exists as long as the marriage subsists.
Can one sue for adultery damages in Zimbabwe?
Adultery is considered an infringement or damage to the marriage however it is not a crime. It is not possible to be arrested for committing adultery, however one can claim damages from a third party who has caused harm in your marriage by intentionally interfering in your marital relationship.
In Njodzi v Matione HH-37-16 the High Court in Zimbabwe, decided that, “adultery is an injury occasioned to the innocent spouse because of the adulterous relationship.
The spouse can recover damages for loss of a spouse’s consortium (the right of association and companionship with one’s husband or wife) as well as any patrimonial loss suffered and also personal injury or contumelia (the hurt, insult, shame loss of dignity and injury one experiences due to the adulterous relationship) suffered by the innocent spouse, inclusive of loss of comfort, society and services.”
To prove that one has caused harm intentionally in the marriage they need to show circumstantial evidence that the adulterous spouse has committed adultery and evidence showing the parties in the act of affection such as photos.
Adultery damages are delictual damages arising from a delictual wrong occasioned to an innocent married party.
Is it Constitutional?
Our courts have an outstanding view when it comes to adultery and the existence of marriage.
In South Africa the Constitional court held that it is unconstitutional to sue a third party for adulterous damages with one’s spouse.
However, in Zimbabwe Njodzi v Matione HH-37-16 the High Court of Zimbabwe, decided that the claim for adultery damages is not unconstitutional.
In terms of the law the marriage institution in Zimbabwe is protected under section 78 of the Constitution of Zimbabwe and it is well established in the culture, religion and tradition of the country. The purpose of making a claim against adultery is to protect the sanctity of the marriage.
The Zimbabwean court is of the view that the dignity of the adulterer is not important than that of the affected party whose marriage has been infringed.
A third party who intentionally causes harm in one’s marriage ought to compensate the affected party for the injury caused.
It is safe to say that adultery remains wrongful in Zimbabwe and that there is nothing unconstitutional about an adultery damages claim.
The new Marriage Act has now recognised civil partnership as a recognised union when it comes to distribution of property upon dissolution of the relationship. Courts will now have to take into account of the circumstances of the relationship when determining whether a Civil partnership existed between the parties when it comes to dissolving the relationship.
This union has brought about a new shift when it comes to dissolving relationships and how the courts should apply this section for purposes of dissolving such a relationship in these circumstances and of those who is married in terms of the Marriage Act [Chapter 5:11] now the Marriage Act [Chapter 5:17].
Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Zenas Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889. Tapiwa Mujaji can be contacted on tapiwa@zenaslegalpractice.com
