Today the Constitutional Court handed down judgment in an appeal in the case of DE v RH 182/14 concerning the continued existence of a spouse’s right to claim damages for adultery against a third party.
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. Mr DE was successful in respect of the claim for insult but the High Court found that the loss of comfort and society of his spouse could not be proved because there was no evidence to show that the adultery had caused the breakup of Mr DE’s marriage.
Mr RH appealed against these findings to the Supreme Court of Appeal. That Court recognised that our law currently allows for the claim of insult against a third party in the case of adultery. However, of its own accord, it raised the question whether the claim should continue to exist. 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. It concluded that in light of the changing values of our society, the claim based on adultery had become outdated and could no longer be sustained. The Court therefore abolished it.
From a legal point of view both the Supreme Court of Appeal and the Constitutional Court was correct in their findings that a claim against a third party for damages in case of adultery is no longer part of our law. Mr RH’s appeal to the SCA against the judgment of the trial court was originally focused against findings of fact and the application of such facts to the law. The Supreme Court of Appeal having addressed itself in some detail to the evidence adduced at the trial, found that not much reliance could be placed on credibility findings of the trial court which had been biased in its judgment and which had erred in its finding on the facts. Mr DE did not appeal against the SCA’s findings of fact and only directed his intended appeal on a question of principle, namely whether the finding that adultery is no longer part of our law is consistent with constitutional values and norms.
The facts before the Supreme Court of Appeal was inter alia that serious problems existed in the marriage between the Mr DE and Ms H. Mr DE demonstrated a profound lack of love, affection, caring and concern for Ms H’s physical, emotional and spiritual well being. He behaved in an abusive manner towards Ms H. This included evidence on one occasion of a physical assault and on another, of marital rape. Ms H took a decision to end the marriage and she left the matrimonial home with her children on 23 March 2010, having informed Mr DE that she was no longer prepared to continue with the marriage. Evidence led at the trial showed that a romantic attachment had developed between Mr RH and Ms H only after she had left the marital home. It was also common cause that a sexual relationship between Mr RH and Ms H had developed only after the consortium in the marriage had ended.
The delict of adultery was abolished in many foreign jurisdictions such as England, Scotland, Canada, Australia, France, the Netherlands, Germany and most states of the United States of America (which countries have no less regard for the sanctity of marriage than any other parts of the world), have recognized and accepted that the action is not desirable or necessary to protect the institution of marriage.
The origins of the claim are deeply rooted in patriarchy. Originally only a man had the right to pursue a claim against a third party that had committed adultery with his wife. Wives were viewed as mere chattels. And that probably explains why the claim was available only against the third party, and not the wife who – in essence – was a co-wrongdoer. As time went on, South African courts began questioning the discriminatory nature of the claim. Making contentions based on Christian principles of fidelity, which are applicable both to husbands and wives.
The Constitutional Court was of the opinion that love and respect are foundations of a solid marriage and not legal rules. Those are within the control of the spouses themselves. After all, it is they who undertook to be truthful and faithful to each other. The Constitutional Court was further of the view that the obligation pre-eminently rests on the spouses themselves to protect and maintain their marriage relationship. Subject to some cultural variations, love, trust and fidelity are the bedrock on which a marriage relationship is built. Whittle or take that away, the relationship may perish. It is the spouses that must avert anything negative befalling the foundation of their marriage.
The Court was further of the opinion that the he delictual claim is particularly invasive of, and violates the right to, privacy. The Supreme Court of Appeal dealt with the abusive, embarrassing and demeaning questioning that Ms H suffered in the High Court. 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”. Likewise, in order to defend a delictual claim based on adultery, the third party is placed in the invidious position of having to expose details of his or her intimate interaction – including sexual relations – with the adulterous spouse. That goes to the core of the private nature of an intimate relationship.
The court further made the point that our modern day idea of the sacrosanctity of marriage and its concomitant protection by the law are by no means what they were in, say, the times of King Henry VIII, who – because of Roman Catholic tenets, at a time when there was not much separation between church and state – could not even get a divorce and was forced to decree that thence forth the Church of England would be separated from the papal authority of the Roman Catholic Church. Needless to say, he was then free to follow his heart’s desire, although he was excommunicated by the Pope for this conduct. We have come a long way from those strictures and gymnastics. 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.
Counsel for Mr RH, Advocates Kuny and Ndlokovane, correctly argued that there is a glaring inconsistency in the action for adultery in that it is available against the third party only and not against the adulterous spouse, who is clearly a co perpetrator, and being the party who has promised fidelity, is arguable more legally and morally culpable than the third party. 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. They also highlighted in argument the obvious difficulties that would arise in determining what constitutes adultery between same-sex partners. It is also arguably not possible to apply the action equally and in a non-discriminatory manner in polygamous marriages which are legally recognised under our constitution and which incorporate asymmetrical concepts of sexual fidelity.
Advocate Dave Smith SC, who appeared for the ex-husband in the high court and in the appeal court, had argued for the important role that a civil claim for adultery played. It sent out a message that marriage was ‘holy’ and that outsiders should not interfere. Adultery was a sin according to all the major religions. He also argued that such a claim was a “release mechanism” that gave the “injured spouse” a legal way of “soothing his or her feelings.”
In his introductory remarks during judgement, Justice Mbuyiseli Madlanga, writing for all members of the court, said the decision was “undoubtedly of historical moment” in South Africa. 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.”v“The law cannot shore up or sustain an otherwise ailing marriage,” he said. “It continues to be the primary responsibility of the parties to maintain their marriage.” “For this reason the continued existence of a claim for damages for adultery by the ‘innocent spouse’ adds nothing to the lifeblood of a solid and peaceful marriage,” the Chief Justice said.
There is no evidence that the action for adultery would deter a spouse in a marriage from committing adultery nor would it deter a third party from committing adultery with a married person. It has long been recognized that adultery is a symptom of the breakdown of the marital relationship and not the cause. In 1978, the Law Commission on divorce, which was responsible for the present Divorce Act 70 of 1979 (introducing the no-fault system of divorce), stated that “Adultery and malicious desertion are for the most part only the ultimate acts which indicate that a marriage has broken down. They are more often the effects of a marriage having broken down than the causes of breakdown”.
Sources: Media Statement and Judgment Constitutional Court and Heads of Arguments of the parties.
Get the judgement here:
Paternity fraud is committed when a mother names a man to be the biological father of a child, for self-interest, when she knows or suspects that he is indeed not the biological father. It happens more often than many of us realise, a woman falls pregnant and is uncertain of who the real father of her child is. Whether she’s married and trying to conceal an affair, or she’d prefer the lover she sees as more reliable to father her child. But to lying about her child’s fatherhood can have a distressing impact on all parties involved. Years may pass, but when the truth comes out the consequences are life-changing.
The need to know one’s own human biological identity is as strong as the need to have your own family. In paternity fraud disputes, there are many potential victims: the non-biological father who pays erroneously maintenance, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child. Other victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he has to pay and his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.
In a recent case in the UK a father was at the centre of a case of paternity fraud after he was tricked into raising another man’s child as his own for 6 years. In this case the Judge ruled that the man’s ex-wife could not be forced to hand back tens of thousands of pounds in maintenance payments even though they were the result of “fraud”. The man was cheated by his ex-wife, into believing that the baby she conceived through fertility treatment at a clinic in Spain was his child. In fact, the child, was the product of a sperm sample provided by her former boyfriend instead of one he had given. The judge in the case ruled that the man had been the victim of “clear deceit and fraud” and ordered his ex-wife to pay him £10,000 in damages for emotional harm, as well as refunding some housing expenses and paying legal bills – which came to about £100,000 in total. The court did not order her to pay back the £60,000 she received in child maintenance from the man after they separated – even though the court found she must always have known he was not the real father. Case law determined that child maintenance cannot be recovered in such cases. Crucially, the finding in his favour does nothing to bring back the son he once had.
In a recent case in the United States a woman found out that her twins had been fathered by two different men in a paternity case. The woman was applying for public assistance and named her romantic partner as the father of both children. In the course of her testimony in court, she admitted to sleeping with a different man about a week after she believed she had conceived the twins with her partner. This prompted a paternity test, which revealed that each man had fathered one of the twins. The original partner was then ordered to only pay child support for one of the children. This kind of occurrence is rare, but not unheard of a doctor who testified in the case gave evidence that 1 in 13,000 paternity cases for twins involve two different fathers.
Studies that was conducted in Australia has shown that between 10% and 16% of the general population are victims of paternity deceit. In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.
In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly 1 in 5 of the contested paternity claims it handled cleared the man originally named as the father. Its figures for 2007-2008 show that out of 3,474 DNA paternity tests ordered, 661 (19%) named the wrong man. Government-approved DNA testing kits, have exposed 4,854 false paternity claims since records began in 1998-99. A British survey conducted between 1988 and 1996 confirmed the 10% figure. A recent poll in the UK on a survey on attitudes to truth and relationships has found that 19 out of 20 women confess lying to their partners or husbands. 83% owned up to telling “big, life-changing lies,” with 13% saying they did so often. Half said that if they became pregnant by another man but wanted to stay with their partner, they would lie about the baby’s real father. 42% would lie about contraception in order to get pregnant, no matter the wishes of their partner.
In the United States it is alleged that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. The exclusion rate however includes a number of factors. One is a woman may allege several men as possible fathers because she was sexually active with these individuals. These are not men who were misled into believing they were fathers and then later discover they are not. The testing merely sorts out which man is the biological father and excludes the others.
In 2012, a woman was arrested in KwaZulu Natal after a mother told a Durban regional court magistrate that she had handed over R65 000 to the woman who was a Facebook friend she had never met who was supposed to be helping her to manipulate a paternity test. The mother wanted the test to reflect her present boyfriend as the biological father of her six-month-old baby, not the real father who she considered “unstable”. The mother who pleaded guilty to attempted fraud and received a 3 year suspended sentence, testified that the woman had initially asked for R1 500 but, thereafter kept on demanding more money, not only for herself, but for “blackmailers” who wanted money for their silence and others including two magistrates who were said to be helping her. Sick of “living a lie” the mother then went to the police. The woman pleaded guilty to five charges of fraud, forgery, uttering, extortion and crimen injuria and was sentenced to 5 years imprisonment.
Issues regarding paternity have been dealt with in a number of cases in the South African Courts. The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.
In 2010 in the case of YM v LB 2010 ZASCA 106 our Supreme Court of Appeal (SCA) was given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal. The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all. The SCA found that where the paternity of the child has been shown on a balance of probabilities, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt. The court also stated that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof and that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child. The SCA also noted that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by a judge in an earlier case that it may not always be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized.
The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations.
Would it be better not to know the truth or to keep the truth from a child at any age and one wonders whether this is indeed in the interests of a child? In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child. Trauma such as this can be easily be resolved through testing.
Section 37 of our Children’s Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.
The unreported case of Nel v Jonker (WCHC) case number A653/2009 was the first reported judgment dealing specifically with misattributed paternity. The ex-husband had regarded the child, born four months into his marriage with the mother, as his biological child and had maintained her as such. Only 16 years after the birth, and 10 years after the divorce, did he discover through DNA testing that the child had actually been fathered by another man. The maintenance court varied the divorce order by deleting his (future) maintenance obligations towards the child since he was not the biological father of the child. The court of first instance subsequently awarded damages to the cuckolded ex-husband for the R50 000 that he paid towards the child’s maintenance since the divorce. This order was taken on appeal. On appeal the Judge overturned the damage award that the maintenance court granted to the ex-husband. The ex-husband argued that he supported the child in the bona fide and reasonable belief that it was due and payable. The Judge found that the ex-husband did not meet all the requirements of the claim, specifically, his error in paying maintenance was found to be unreasonable and that there was no proof that the mother of the child was enriched by the maintenance payments. In adding, the court noted that prescription could have reduced his claim, but as it was not pleaded it was not necessary to consider. With regard to considerations of public policy the court did not find it necessary to make a final decision in this regard. The reading of the case leaves one with a feeling of dissatisfaction because the set of facts was not ideal to deal with this complex issue, and partly because of the fact that the pleadings and evidence were deficient, making a precedential judgment on misattributed paternity impossible.
What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child, blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. Looking at jurisdictions around the world, there are various ways to deal with the question of refunding of the maintenance payments. On the one side of the scale certain jurisdictions by legislation deny such an action mostly on the best interests of the child. It has also been argued that where a man accepts fatherhood, he cannot recant his fatherhood merely based on the fact that he is not the biological father – fatherhood after all comprehends much more than just biology. In other jurisdictions legislation and the courts provide for a re-claim of maintenance contributions. Which side of the scale South African courts will lean towards in future remains to be seen.
A last question that can be asked is whether the mother of a child can be prosecuted for the crime of (paternity) fraud or whether public policy should exclude this possibility? Fact is that it remains fraud and such actions should be prosecuted. The scenario is becoming more common around the world and also in South Africa. With DNA tests becoming cheaper and more available, the courts or the legislature will have to deal with this problem soon.
KLVC v SDI and Another  1 All SA 532 (SCA)
Section 21(1)(b) of the Children’s Act 38 of 2005 (the Act) provides, that an unmarried father of a child, regardless of whether he has lived or is living with the mother of the child, acquires full parental rights and responsibilities over the child if he –
‘(i) consents to be identified or successfully applies to in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period’.
In KLVC v SDI and Another  1 All SA 532 (SCA) the issue the court had to deal with was whether the father, had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over his minor child. During the father’s temporary trip overseas, the mother relocated the four-month-old minor from Durban to the UK without the consent of the father or authority of a court. As a result the father instituted proceedings in a UK court for return of the child to South Africa. The UK court was unable to decide if the removal of the child from South Africa was wrongful in that it was done without the required consent of the father or authority of court. It accordingly referred the question for determination by a South African court.
The High Court found that the father had satisfied the requirements of the section and accordingly acquired full parental rights and responsibilities over the minor child. The mother then appealed but her appeal was dismissed with costs by the Supreme Court of Appeal.
The Supreme Court of Appeal judges held that determining whether or not an unmarried father had met the requirements of the section was an entirely factual enquiry. It was a type of matter, which could only be disposed of on a consideration of all the relevant factual circumstances of the case. An unmarried father either acquired parental rights or responsibilities or did not. Judicial discretion had no role in such an enquiry. The concept of a contribution or attempt in good faith to contribute to the child’s upbringing for a reasonable period was an elastic one, which permitted a range of considerations culminating in a value judgment as to whether what was done could be said to be a contribution or a good faith attempt at contributing to the child’s upbringing over a period which, in the circumstances, was reasonable.
In this case the father had demonstrated sufficiently that he had acquired full parental responsibilities in respect of the minor. As co-guardian, his consent was required prior to the removal of the child from South Africa by the mother. By removing the minor without such consent the mother acted in breach of the father’s parental rights and responsibilities.
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Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.