Your executor – the most important person to appoint in your will
October 8, 2024Artificial Intelligence and the South African Legal System
December 2, 2024The irretrievable breakdown of a marriage is one of the grounds for divorce in South Africa and adultery may lead to one of the spouses instituting divorce proceedings. However, it is important to take note that adultery does not constitute the right to a more significant portion of marital assets as the division is governed by the specific marital property regime applicable to the marriage in question.
Historically, and in the current South African legal context, adultery was and remains one of the primary causes of divorce. However, prior to 1979, the Divorce Act made provision to involve financial penalties for the unfaithful spouse as it seemed unethical or illegal to gain from a marriage which was destroyed by such spouse because of adultery.
After 1979 the Divorce Act was amended to a “no-fault” divorce system. This means that maintenance as we know it, is not determined by establishing who is at fault for the breakdown of the marriage anymore and no financial penalties exist. The courts rather take into consideration factors such as the standard of living during the marriage, the earing capacity of the parties etc. in cases where spousal maintenance is applicable.
Are there any legal consequences for the third-party who committed adultery?
A third-party who was the reason for the breakdown of the marriage on the grounds of committing adultery, could in the past be sued by the aggrieved spouse. However, up until 2014 in the case of RH v DE, the Supreme Court in South Africa ended the right to sue a third party for adultery, ruling that “such claims no longer aligned with contemporary societal norms and constitutional values” as it infringes on the third party’s individual rights to privacy.
Thus, the current state in South Africa is that where one of the spouses are to believe that the marriage is beyond repair, he/she may institute divorce proceedings for any reason which resulted in the fact that the marriage is beyond repair and cannot be saved.
Although adultery might have a significant impact on the outcome of the well-being of the parties involved and decisions on maintenance during the divorce proceedings, it does not result in any financial penalties.
Contact us today for legal advice in order to help you to make informed decisions!
