Understanding Adultery and Divorce in South Africa

Divorce can be a daunting and emotional process, and when adultery is involved, it often adds another layer of complexity. Understanding how adultery impacts divorce in South Africa is essential for making informed decisions. South Africa follows a no-fault divorce system, which means that neither spouse is legally blamed for the breakdown of the marriage. However, adultery can still serve as evidence of an irretrievable breakdown, which is one of the legal grounds for divorce.

Legal Grounds for Divorce in South Africa

Under the Divorce Act 70 of 1979, there are only two recognised legal grounds for divorce:

1. Irretrievable breakdown of the marriage – When spouses can no longer maintain a normal marital relationship, the court may grant a divorce.
2. Mental illness or continuous unconsciousness – If one spouse has been mentally ill or in a persistent vegetative state for an extended period, divorce may be granted.

Although adultery alone is not a separate ground for divorce, it can serve as proof that the marriage has irretrievably broken down, making it difficult or impossible for the innocent spouse to continue the marriage.

Before 1979, South African divorce law required proof of wrongdoing, and adultery was one of the main legal grounds for divorce. The introduction of the no-fault divorce system meant that courts no longer needed to determine who was responsible for the marriage’s failure. If one spouse believes the marriage is irreparably broken, the court can initiate divorce proceedings even without the other spouse’s consent.

Historically, a wronged spouse could sue a third party (the person with whom their spouse had an affair) for damages on the grounds of alienation of affection. This legal principle allowed the innocent spouse to claim compensation for emotional harm, reputation damage, and loss of companionship. To succeed, the aggrieved spouse had to prove:

• That the marriage was stable before the third party’s involvement.
• That the third party was responsible for the breakdown of the marriage.

Although these claims were often challenging to prove, some courts awarded compensation to the injured spouse. However, this changed in 2014 with a landmark decision by the Supreme Court of Appeal.

In the case of RH v DE (594/2013) [2014] ZASCA 133; 2014 (6) SA 436, the Supreme Court ruled that a spouse could no longer sue a third party for adultery. The Constitutional Court upheld this decision, stating that holding a third party accountable for adultery was outdated and incompatible with modern legal principles.

The ruling was based on several key considerations:

• Right to privacy and freedom of association – People have the right to make personal choices, even if those choices lead to marital breakdowns.
• Emotional and financial burdens of litigation – Allowing such claims could encourage unnecessary and emotionally charged legal battles.
• Personal responsibility in marriage – The court reinforced that marriage is a personal commitment, and maintaining fidelity is the responsibility of the spouses, not the legal system.
• Changing societal norms – Modern family law recognises that marriage is built on mutual love, respect, and fidelity, which the courts cannot enforce.

This decision aligned South African family law with international trends, emphasising personal responsibility over legal retribution.

While adultery is no longer a punishable offense under South African law, its effects on families—especially children—can be profound. Divorce, particularly when infidelity is involved, can create a tumultuous environment for children, leading to confusion, insecurity, and divided loyalty between parents.

To minimise the emotional toll on children, parents should consider:

• Open and honest communication – Providing age-appropriate explanations can help children understand the situation.
• Seeking professional support – Therapy or counselling can assist children in coping with the emotional challenges of divorce.
• Maintaining stability – Ensuring consistency in routines, living arrangements, and parental involvement can help mitigate the negative impact.

Although South African law no longer punishes adultery, it remains a significant factor in many divorces. While it cannot directly impact financial settlements, it can serve as evidence of an irretrievable breakdown in court proceedings. Understanding the legal context, historical background, and recent legal changes can empower parties facing divorce due to adultery to make informed decisions about their future.