A paper by a UKZN academic setting out the historical development of the legal consequences of adultery will be published in Fundamina: A Journal of Legal History.

The paper, by Professor Marita Carnelley who is the Academic Leader in Research at the School of Law, is titled: “Adultery Laws: Comparing the Historical Developments of South African Common Law Principles with those in English Law”.

Carnelley presented the paper at the Legal Historian Conference   held at KwaMaritane in the Pilanesberg earlier this year.

The article sets out the historical development of the legal consequences of adultery in two jurisdictions: South African and English law.

‘Adultery is still legally relevant in South Africa,’ said Carnelley. ‘Although it is no longer a crime,  the Transvaal High Court (as it was then known) confirmed in 2008, that the delictual damages claimed by the innocent spouse against a third party adulterer remained part of South African law.  Adultery, combined with the inability to continue with the marriage, could still nominally be part of the grounds for a divorce in the form of a guideline to prove that the marriage has irretrievably broken down.

‘In addition, adultery may also be indirectly relevant at the time of divorce, namely as a factor to consider when determining post-divorce spousal maintenance, a claim for forfeiture of benefits and/or a redistribution order. The question is asked whether this is constitutional and still relevant in modern society.’

In the article, Carnelley unpacks how adultery, generally considered to be a moral issue, has had and still has relevance in law.

She explains how historical changes to the legal approach towards adultery took the form of a three-stage process: first, adultery resulted in private self-help measures where the adulterers could be punished and killed by their families and then moving to the second stage where adultery was criminally prosecuted by the state and sentences over the centuries included death by burning, exile and flogging.

The last stage of development, where the South African legal system is now situated, is where adultery could result in a private delictual claim for damages to appease the hurt feelings of the innocent spouse. This possible remedy is regarded as important by the courts from a public policy perspective, as infidelity in marriage continues to be a serious problem affecting the core of family life in South African society.

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