refilwe May 9, 2018 Divorce 1 Comment 1140 views. Including enduring separation, adultery, imprisonment, desertion, abuse, alcohol or … The decision in Vivian v Kilian 1927 AD 449 resulted in South African courts recognising that a person has a claim for damages against a third party who had engaged in adulterous behavior with that person’s spouse. The judge commented as follows: “I leave the sustainability of their continued existence as the subject of consideration for another day. The applicant, Mr DE, sued the respondent, Mr RH, in the North Gauteng High Court, Pretoria for damages on the basis that Mr RH had an extra-marital affair with Mr DE’s former wife, Ms H. Mr DE had launched his action based on the general remedy for the infringement of personality rights, specifically claiming for insult to his personality and the loss of comfort and society of his spouse. In dealing with this issue, the Supreme Court of Appeal judgment canvassed the historical trajectory of the claim, foreign law, changing societal norms and the detrimental financial and emotional costs of an action of this nature. Adultery in South Africa, can I claim against a third party in a divorce. They also argued that the action for adultery is often used by an aggrieved spouse in a divorce action as a weapon in terrorem to exact a settlement which such party might not otherwise be capable of achieving and it often leads to abuse. Needless to say, he was then free to follow his heart’s desire, although he was excommunicated by the Pope for this conduct. Courts have started to view divorce as a ‘no fault consequence’, and previously an innocent spouse was able to bring an action for damages against a third party (the co-defendant) with whom adultery was committed. There were two grounds: Marriage out of community without accrual, Marriage out of community with the inclusion of the accrual, Dealing with Emotions During Divorce and Separation. There were two grounds: The Supreme Court of Appeal ruled on 24 September 2014 in the case of RH v DE that the law allowing civil damages claims against a third party for adultery is “archaic” and “the time for its abolition has come”. We have come a long way from those strictures and gymnastics. In terms of the Divorce Act, a court may take into account a spouse’s conduct when making a cost order in contested divorce proceedings. Search. Legal separation does not exist in South Africa even if you are no longer living with your husband and not divorced. Courts have started to view divorce as a ‘no fault consequence’, and previously an innocent spouse was able to bring an action for damages against a third party (the co-defendant) with whom adultery was committed. Only a judge can grant a divorce order. This case was taken on appeal to the Constitutional Court. Extra-marital affairs (adultery) or other matrimonial offences may lead to an irretrievable breakdown when one or both of the parties find it impossible to continue a normal marriage relationship as a result thereof, but it is not in itself a stand-alone ground for divorce in South Africa as the fault principle no longer applies. 1. If you have additional questions about how adultery affects your rights during a divorce in South Dakota, you should speak with an experienced family law attorney in your area. Divorce. It is not, however, a stand-alone ground for divorce in South Africa… Statistics South Africa has released its latest data on marriage and divorce in South Africa, revealing that divorce rates are up – while marriages are down. adultery and the law In the case of Wiese v Moolman, in 2009, adultery was defined as voluntary sexual intercourse between a married person and someone who is not his or her spouse. To read the full text of the law on alimony in South Dakota, see the South Dakota Codified Laws § 25-4-41 . Divorce. Uncontested Divorce - What Happens on the Court Day? She was “made to suffer the indignity of having her personal and private life placed under a microscope and being interrogated in an insulting and embarrassing fashion”. That is because times are changing, and the law – though still recognising the sanctity of marriage – has moved with the times both in its conception of the institution of marriage and the punitive extremes to which it will go to protect it. The Supreme Court of Appeal dealt with the abusive, embarrassing and demeaning questioning that Ms H suffered in the High Court. It has long been recognized that adultery is a symptom of the breakdown of the marital relationship and not the cause. “The South African court did not deprive its citizens or dual citizens from seeking recourse when their marriage is intruded upon in jurisdictions where the delict is still considered actionable. However, adultery as a ground for divorce is seldom relied upon in Namibia, because of the need to provide evidence of the adultery. The conduct of the parties leading to the breakdown of the marriage does play a role in South African divorce law. In the Supreme Court of Appeal's judgement the court did not deal with other possible claims based on the actio iniuriarum which relate or are connected to the institution of marriage, such as the action for abduction, enticement and harbouring of someone's spouse. adultery. Such a claim was brought even if divorce proceedings were not instituted against the guilty spouse. Chief Justice Mogoeng Mogoeng agreed, but, with Justice Edwin Cameron, he added an additional brief judgment saying that the law had a role in supporting marriage by helping ensure that barriers to family life were removed, but “The rest is in the hands of the parties to the marriage.” “The law cannot shore up or sustain an otherwise ailing marriage,” he stated. Home / divorce in south africa adultery. In South Africa adultery is not a crime. But the Act still allowed for the forfeiture of financial benefits if a spouse committed adultery. If the relationship between you and your spouse is amicable and you have already decided on the terms of your settlement agreement, the process is a lot faster and simpler than in the case of an opposed divorce. Getting Divorced in South Africa – Dissolving a Marriage. It gives general information only and does not take the place of legal advice. 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