The high price of betrayal: Adultery damages under legal scrutiny

NAMATIRAI RUZVIDZO

In a precedent-setting ruling recently, the Harare High Court judge, Justice Joel Mambara, awarded $25 000 in adultery damages to a woman whose marriage collapsed after her husband’s extramarital affair.

The award was for loss of consortium (collapse of marriage due to the role played by another party) and contumelia (indignity, insult and harsh treatment suffered).

The sum-among the highest in Zimbabwean legal history – signalled a firm judicial stance against marital betrayal.

But, how do other jurisdictions treat such cases?

Should cheating hearts pay, and if so, how much?

This article undertakes a comparative analysis of adultery damages in different jurisdictions, including Zimbabwe, examining the historical development, rationale, and factors influencing quantum. It also critiques current approaches and considers the relevance of adultery damages in modern family law.

Historical development

The concept of adultery damage dates back to ancient times, with early legal systems recognizing the harm caused to a spouse and family. In Roman law, for instance, adultery was considered a serious offense and damages could be claimed by the injured spouse.

Similarly, in many common law jurisdictions, adultery was initially considered a tort, allowing the injured spouse to claim damages for harm suffered.

Rationale behind adultery damages

The rationale behind awarding damages for adultery varies across jurisdictions.

Some courts focus on compensating the injured spouse for the emotional distress, loss of consortium, and damage to their marital relationship. Others emphasize the punitive aspect, aiming to deter potential adulterers.

A few jurisdictions consider a combination of both compensatory and punitive rationales.

Comparative analysis of quantum

The quantum of damages awarded for adultery differs significantly across jurisdictions.

United States of America

In the United States of America while adultery can be grounds for divorce in some states, it is no longer a basis for a civil lawsuit for damages against the adulterous party.

The common law torts of “criminal conversation” (sue the adulterer) and “alienation of affection” (sue the spouse) have been largely abolished or significantly limited in most states.

The traditional torts of criminal conversation and alienation of affection, which allowed a spouse to sue the adulterer and the adulterous partner for damages, have been largely repealed or curtailed in the United States of America. These torts are no longer recognized as a basis for civil lawsuits in most states, meaning one cannot sue someone for ruining your marriage through adultery.

Adultery is still a ground for divorce in some states, but it does not necessarily lead to a separate civil lawsuit against the adulterer. If your marriage is affected by infidelity, the legal remedy is typically to pursue a divorce.

While adultery may lead to a divorce and a financial settlement as part of that process, the adulterer does not face a separate legal punishment or financial penalty beyond the divorce proceedings.

The legal landscape has shifted away from viewing adultery as a basis for criminal charges or extensive civil liability.

Society’s views on marriage and divorce have also changed, leading to a focus on the relationship itself and less emphasis on external “wrongdoers”.

Courts have also been concerned that allowing these torts could open the door for abuse of the legal system by those seeking retribution rather than justice.

In essence, while adultery can impact divorce proceedings and the division of property, it is no longer a basis for a separate civil lawsuit for damages against the adulterous party or their partner in most states in America.

South Africa

A landmark decision by the Supreme Court in 2014 significantly altered the legal landscape regarding adultery and divorce in South Africa. In the case of RH v DE (594/2013) [2014] ZASCA 133, the court abolished the right to sue a third party for adultery, ruling that such claims no longer aligned with contemporary societal norms and constitutional values.

The Constitutional Court upheld this decision, emphasizing that holding a third party liable for adultery infringed on individual rights to privacy, freedom of association, and personal security.

The court noted that the obligation to maintain and protect the marriage lies primarily with the spouses, not the legal system.

It highlighted that love, respect, and fidelity are the foundations of a marriage, which legal rules cannot enforce.

By removing the right to sue for adultery, the court aimed to reduce the emotional and financial toll of such actions.

It acknowledged that modern society no longer views adultery as a wrongful act deserving of legal punishment.

The ruling also recognized that allowing these claims could lead to abusive litigation tactics, with spouses using them as leverage in divorce settlements.

The court’s decision marked a significant step towards modernizing South African family law by aligning with international trends and reflecting changing societal values. This shift underscores the evolving understanding of marriage, emphasizing personal responsibility over legal retribution.

India

In India, adultery is not an actionable claim for damages.

While adultery can be grounds for divorce, it is not a basis for suing the adulterous partner or a third party for financial compensation.

Section 497 of the Indian Penal Code, which criminalized adultery, was struck down by the Supreme Court in 2018, deeming it unconstitutional. Adultery remains a valid reason for divorce under various personal laws in India. This means a spouse can seek a divorce based on the other spouse’s adultery.

Indian law does not allow a spouse to sue the adulterous partner or the third party for financial damages. The Kerala High Court affirmed this, overturning a compensation award to a husband based on adultery. A spouse found guilty of adultery may face a reduced or denied claim for maintenance (alimony).

Under recent laws in India, a wife who has committed adultery may not be entitled to maintenance.

Further, adultery is no longer a criminal offense in India after the Supreme Court’s decision in Joseph Shine vs. Union of India.

The court found Section 497 of the Indian Penal Code, which criminalized adultery, to be discriminatory and unconstitutional. Adultery can be a significant factor in divorce proceedings, influencing the outcome of the case, especially in determining custody of children, property division, and maintenance

Zimbabwe

In Zimbabwe however, adultery is a ground for divorce, and damages can be claimed by the injured spouse. The courts consider factors like the circumstances surrounding the adultery, the impact on the marriage, and the parties’ conduct.

Damages awards can vary, but Zimbabwean courts tend to award more modest sums compared to some other jurisdictions.

Factors influencing quantum

Courts consider various factors when determining the quantum of damages, including:

The extent of emotional distress, loss of consortium, and damage to the marital relationship.

Longer adulterous relationships may warrant higher damages awards.  Furthermore, courts may also consider the effect of adultery on children, family dynamics, and reputation.

The court may consider the behavior of both spouses, including any mitigating or aggravating circumstances.

The relevance of adultery damages in modern family law is debatable. Some argue that adultery damages may reflect outdated societal attitudes toward marriage and fidelity and that modern relationships are often more complex, and damages awards may not adequately address the nuances of contemporary family dynamics.

It can also be argued that damages awards may not effectively deter adultery and may instead serve to punish one party while ignoring underlying relationship issues.

Conclusion

Adultery damages remain a contentious issue in family law, with varying approaches across jurisdictions. While some courts focus on compensating the injured spouse, others emphasize punishment. The quantum of damages awarded differs significantly, reflecting diverse cultural, social, and legal contexts. As family law continues to evolve, it is essential to reassess the rationale and relevance of adultery damages, considering the complexities of modern relationships and the need for a more nuanced approach.

Namatirai Ruzvidzo is a registered Legal Practitioner, Conveyancer and Notary Public with the law firm, Ruzvidzo Legal Counsel. She can be reached on +263 784 228 534 or email namaruzvidzo@gmail.com, copying hello@rlcounsel.co.zw