In 1979 a no-fault system was introduced into South Africa’s divorce law. In terms of the Divorce Act, 70 of 1979 adultery was removed as a ground for a divorce. Before 1979, an innocent spouse would have recourse against a third party with whom the adulterous relationship was committed. The claim could be brought on one of two grounds; 1: alienation of affection or enticement, and 2: Adultery.

In 2014 the court dealt with the aspect of adultery in the case of RH v DE (594/2013) [2014] ZASCA 133; 2014 (6) SA 436. In the above-mentioned case, the court had to determine whether the action against third parties for adultery is still relevant today and whether it should be abolished. The court concluded that the civil claim had no significance in society, and thus should be abolished. The case was taken on appeal to Constitutional Court (CC) in 2015. The CC held that the civil claim of adultery should no longer part of our law. The court reasoned that the solid foundations of marriage are love and respect and that legal rules should not be controlling spouses’ actions. The court further held that the delictual claim was invasive and violates the rights to privacy of the parties involved. Furthermore, the court noted that the recourse was on available against the third party, but there were no consequences for the adulterous spouse.  This raise the notion whether the action was discriminatory on the above basis.

Moreover, the court noted that there is no evidence that the civil action of adultery would deter a spouse in marriage from engaging in an extramarital affair, and neither act as a warning for a third party from committing adultery. Therefore, the claim was deemed superfluous and rightfully abolished from South African law.

Therefore, any party wanting to divorce on the grounds of their partner engaging in an extra-marital relationship would not succeed as courts do not deem this relevant for a divorce, and neither would they have any recourse against a third party for the interference in the marriage.

Grounds for divorce in South Africa

There are only two grounds that the court considers when granting a divorce, they are irretrievable breakdown of the marriage, or the mental illness, or the continuous unconsciousness, of a party to the marriage.

  1. Irretrievable breakdown

The court may decide to grant a divorce on the grounds of irretrievable breakdown, if the parties can illustrate that the marriage has broken down and that there is no reasonable prospect of rebuilding the relationship between the parties. As per the Divorce Act 70 of 1979 the court may accept the following as indication of irretrievable breakdown of the marriage:

  1. The parties have not lived together for a continued period of at least one year before the institution of the divorce proceedings, or
  2. The Defendant was declared a habitual criminal and was sentenced to imprisonment, or
  3. The defendant has committed adultery and that the plaintiff finds irreconcilable with a continued marriage relationship
  1. Mental illness, or the continuous unconsciousness

Mental illness

The court may grant a decree of divorce on the grounds of the mental illness of the defendant if the court is satisfied that the defendant:

  1. Has been admitted as a patient to an institution in terms of the reception order,
  2. He/she/they have been detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
  3. He/she/they are being detained as a mentally ill convicted prisoner at an institution.

Continuous unconsciousness
A court may grant a decree of divorce on the grounds that the defendant is, by reason of a physical disorder, in a state of continuous unconsciousness, if it is satisfied that:

    1. The defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and
  1. after having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.