Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other": Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws ...
Adultery is defined as "sexual intercourse between two persons of whom one or both are married but who are not married to each other":
Sapsford v Sapsford and Furtado (1954) 2 All ER 373; P.M. BROMLEY and N.V. LOWE, Family Law, London, 7th ed. 1987…,; see also S.A. ADESANYA, Laws of Matrimonial Causes, Ibadan University Press, 1973…,; E.I. NWOGUGU, Family Law in Nigeria, Ibadan, 1974…,.
Zimbabweans pride themselves on being a conservative nation that upholds the institution of marriage, and traditional family values. A lot of Zimbabweans are God-fearing Christians. Some of them are traditionalists who practice polygamy. Most Zimbabweans of black descent believe in paying lobola, or bride price, irrespective of their Christian or traditionalist beliefs.
The entitlement to damages as compensation for the commission of adultery in traditional black culture in Zimbabwe is recognized in customary law as the right of a man who will have paid lobola for his wife.
Back in the village, the Chief may fine the third party, the adulterous man, to pay a beast or two as compensation to the woman's husband.
There is no corresponding right that accrues to a married woman to sue her husband's consort for damages if they engage in a sexual relationship in our customary law.
The rationale for that appears to be rooted in the fact that the man “marries” the woman when he pays lobola, not the other way round.
The Christian concept of marriage is based on an ideal that both the man and the woman leave their respective parents, appear before God as equals, and “cleave” to each other. They are equals before God....,.
In other jurisdictions, the question of whether adultery should continue to be regulated by the law has spanned widespread debate. There are proponents for and against the award of damages to the injured spouse. Different countries have adopted different views, based on cultural or religious considerations.
In Nigeria, it has been said that:
“Adultery is one of the cardinal sins in the Ten Commandments, and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law.
Of particular gravity was adultery by a wife which was described as being unforgivable by a husband. For while, a husband could divorce his wife on the sole basis of her adultery; a wife had to prove other material facts in addition to her husband's adultery in order to obtain a similar relief. Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman.” See Judicial Concepts of Adultery, Intolerability and Damages in Nigeria E.N.U. UZODIKE.
In the United States, it has been said that:
“According to the 'godmother of infidelity research,' Shirley Glass, the United States is currently experiencing a 'crisis of unfaithfulness.' The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent. Pro-marriage activists and feminists are leading a war against decisions such as Koestler. Pro-marriage activists usually attack rejections of adultery claims by emphasizing the importance of marriage and family. Feminists favoring adultery claims emphasize the negative consequences of adultery on women”. See 2003:1013 1015 Wisconsin Law Review at page 1012 of the Wisconsin Law Review: 20.03 Wis. L. Rev. 1013 2003.
The debate appears to be fuelled by the fact that those who are pro-marriage, advocate for the compensation of an injured spouse, by an errant spouse, for emotional and mental distress that is accepted to be a by-product of an adulterous relationship.
Adultery is almost always debilitating for victimized spouses. They can suffer tremendous emotional damage, loss of trust, troubling mental insecurities, decreased job performance, and financial insecurity (especially when adultery leads to divorces involving children).
What is even more tragic is that, currently, most law in the United States does little to remedy the mental damage caused by unfaithful spouses.” See The State's Perpetual Protection of Adultery: Examining Koestler v Pollard and Wisconsin's Faded Adultery Torts, NEHAL A. PATEL.
Closer to home, in South Africa, the debate, on whether adultery damages should remain an area that is regulated by the law, was taken up in the recent case of RH v DE (594/2013) (2014) ZASCA 133 (25 September 2014).
It was a delictual claim for damages based on adultery between the defendant and the plaintiff's wife on the law as it stands.
The court found, that, the award had been rightly made for contumelia but that the award for loss of consortium was not justified. The court considered whether the action should be maintained as part of South African law and concluded that its continued existence no longer justified.
In this case, the plaintiff's cause of action relied on the actio iniuriarum in the form of adultery and adultery only.
Although he claimed damages under the two headings of contumelia (i.e. insult or injury to his self-esteem) and loss of consortium (i.e. the loss of comfort and society of his wife), the court considered the question for determination to be: what are the consequences of adultery?
It followed that the court considered that it need only consider the question of the quantum of damages. The court said the following:
“The context in which the question arises is the recognition by our courts, that, while the major engine for law reform lies with the legislature, the courts are nonetheless obliged on occasion to develop the common law in an incremental way. These occasions are dictated;
Firstly, by section 39(2) of the Constitution which imposes the duty on the courts to develop the common law so as to promote the spirit, purport, and objectives of the Bill of Rights.
Secondly, by the acceptance that the courts can and should adapt the common law to reflect the changing social, moral, and economic fabric of society; that we cannot perpetuate legal rules that have lost their social substratum (see for example Du Plessis v De Klerk 1996 (3) SA 850 (CC) para 61; Carmichele v Minister of Safety and Security & Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) para 36).
The boni mores of society or the legal convictions of the community, which in effect constitute expressions of considerations of legal and public policy, are of particular significance in determining wrongfulness, which is an essential element of delictual liability in our law, both under the lex Aquilia and the actio iniuriarum.
In Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici curiae) 2011 (3) SA 274 (CC) para 122 the principle was formulated thus:
'In the more recent past, our courts have come to recognise, however, that in the context of the law of delict:
(a) The criterion of wrongfulness ultimately depends on a judicial determination of whether, assuming all the other elements of delictual liability to be present, it would be reasonable to impose liability on a defendant for the damages flowing from specific conduct; and
(b) That the judicial determination of that reasonableness would, in turn, depend on considerations of public and legal policy in accordance with constitutional norms.'
This means, that, especially in determining whether conduct should be regarded as wrongful, i.e. whether delictual liability should follow, courts are more sensitive to have regard to the dynamic and changing nature of the norms of our society.”…,.
The South African court acknowledged, that, the main advantage of the claim was that it protects the institution of marriage which our society holds dear as one of the most important bases for family life and which is recognised and protected as such by the Constitution.
In Zimbabwe, if we are to take the approach adopted by the South African court, we should consider whether our society's views regarding the institution of marriage have changed.
In my view, they have not.
If we give effect to our national objectives, as enshrined in our Constitution, we will find that the institution of marriage, and family values, is protected, and enshrined, in the Constitution.
In South Africa, their Constitution protects and enshrines a myriad of other institutions which are not necessarily compatible with marriage.
It is my view, that, the dicta in the following case, which was decided more than ten years ago, still applies in this country, and that, it reflects the views of our society: Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…, :
“Accordingly, unless they are prepared to take a strong and principled stand in this regard, in support of the vital institution of marriage, the courts will only be party to society's further slide down the slippery slope to the unlicensed promiscuity which scoffs at the spiritual prohibitions against pre-marital and extra-marital sex and which has landed the world in the sexual morass over which the monster Aids now presides in all its frightening aspects.”
In my view, this country is not ready to follow our South African counterparts down the slippery slope.
Our Constitution, which came about as a result of widespread consultations with grassroots Zimbabweans, declares one of our national objectives to be that the State must take appropriate measures to ensure that there is equality of rights and obligations of spouses during marriage: section 26(c) of the Constitution of Zimbabwe Amendment (No.20) 2013.
My interpretation of this clause is that there is nothing in our Constitution which may be interpreted as precluding a wife from being entitled to damages from a third party who will have destabilized her marriage knowing full well that she was married to her husband in terms of the Marriages Act, as opposed to the African Marriages Act.
