What now? Adultery damages in view of the new Marriages Act [Chapter 5:15]

Adultery damages. Legal reform and the new Marriages Act. In view of the latter, the common law remedy available to a partner who has suffered from their spouse’s infidelity has been a subject of intense legal debate amongst jurists, civil society, lawyers and the academic fraternity. Members of the public have not been left out of this debate as it concerns the legal status of their monogamous marriages.

Whether adultery damages are still part of our law is of huge concern since those in monogamous marriages would want to protect and enjoy the legal essence of, “one husband for one wife”. On the other hand , the shifting modern trends demand a more flexible legal framework where married people can freely roam around and indulge in sex with third parties outside of their monogamous marriages and still hold sway. Such has been the nature of the conflict of interest surrounding this legal discourse.

A brief background of adultery damages

Adultery damages are a common law remedy available to an individual whose marriage is of a monogamous nature with a view to ensure that their partners do not engage in sexual intercourse with a third party other than themselves. The import of this common law background is that, to protect a monogamous marriage, the wronged party can sue the third party who would have engaged in a sexual affair with their partners. The mischief surrounding the development of this common law remedy is that, a monogamous marriage should be afforded its protection by the law in order to ensure that third parties ‘respect’ this kind of marriage.

When claiming for adultery damages, the wronged spouse would be suing the adulterer (third party) for loss of love, affection and comfort that they have a monopoly over in terms of the law. Put simply, adultery damages serve as a compensation of such loss which would be quantified and paid in monetary terms, usually a lump sum.

The new Marriages Act and what it says about adultery

The new Marriages Act does not preclude adultery damages. However, an analysis of the provision of section 41 legalizing civil partnerships has prompted a certain legal group into believing that the new Act has, by virtue of this section, did away with the practical relevance of adultery damages. It sanitized and granted a license for adultery, it is argued. The mooted section reads as follows;

41 Civil partnerships

(1) A relationship between a man and a woman who—

(a) are both over the age of eighteen years; and

(b) have lived together without legally being married to each other; and

(c) are not within the degrees of affinity or consanguinity as provided in

section 7; and

(d) having regard to all the circumstances of their relationship, have a

relationship as a couple living together on a genuine domestic basis;

shall be regarded as being in a civil partnership for the purposes of determining the rights

and obligations of the parties on dissolution of the relationship and, for this purpose,

sections 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] shall, with necessary

changes, apply on the dissolution of any such relationship. (underline is for emphasis)

A read of this section to the effect that adultery damages have lost their relevance is with respect, a misinterpretation of an otherwise clear legal proviso. A purposive read of this particular law should not be read outside its historical background and concept. It is settled that context should form the fundamentals of statutory interpretation.

The relevant section, which is a brainchild of a protracted judicial activism by judges to protect mostly women who would have stayed with a partner who at the time of such stay was married in terms of a civil marriage, formerly under chapter 5:11 of the repealed Act (now section 5(1) of the new Act.

A purposive read of section 41 should not be understood as a substitution of the common law damages of adultery. It is a law that ensures that there is no unjust enrichment whenever partners in a civil partnership separate. That is the actual soul of this law.

During what the new law terms a ‘shared life’, the courts took judicial notice that some women were falling prey to men who would have been married in terms of a civil marriage and would have invested in a civil partnership only to lose out during separation or upon realizing that the male partner had concealed information of their subsisting civil marriage. That was the mischief that the legislature sought to address .

The import of section 41 of the new Act therefore revolves around protection of property rights in a civil partnership without more. To suggest that the provision does away with adultery damages is with respect, an overreach . It is nothing short of interpreting law to fit certain interests.

Basic interpretation of statutes

Out of public interest and without being too legalistic, basic interpretation of statutes states that a law should be given its grammatical meaning unless doing so would lead to a legal absurdity which the law makers did not foresee when crafting that law. In addition, it is a well-trodden concept of statutory interpretation that when interpreting statutes, the courts should not make a conclusion for the replacement or removal of a common law concept unless the new law states as such in a precise and concise manner.

This was the court’s reasoning in decisions such as the most recent Chigwada v Chigwada in the Constitutional Court by Malaba J and the High Court decision by Kudya J in Estate Late Wakapila V Dennia Matongo and Master of The High Court.

While the above cited cases emphasized on the presumption against judicial ouster of the common law doctrine of freedom of testation, the same reasoning applies with equal force on the current debate on the common law delict of adultery damages. It can only be whisked away through an explicit law being introduced to that effect.

A more persuasive reasoning on this can also be drawn from the South African Court’s reasoning in the most recent Constitutional Court case of University of Johannesburg v Auckland Park Theological Seminary in which the court correctly established that laws should be read basing on a triad of the text, context and purpose.

In the classic case of R v Kirk, the court held that laws should not be read in a manner that individuals prefer but based on what the law itself provides. Further, historical background should form the core reasoning when interpreting laws. I have already addressed this above and established that the background of the civil partnership section was not in any way motivated by the desire to abolish the common law adultery damages. Further, the question of adultery damages has been long winding and this was never a result of oversight by the parliamentarians. It is therefore clear that the law makers were not interested in shifting the current position.

Zimbabwean courts want to protect the status quo

It is salient to appreciate the nature of our courts in order to predict what the courts may decide. Zimbabwean courts are generally conservative and with a more Christian based inarticulate major premise. Even the nation itself cherishes Christian values. The courts are not really motivated to set aside adultery damages on the wake of the legalization of civil partnerships.

In a recent adultery suit in the case of P v D, the court ruled in favour of the Plaintiff even though the civil marriage in question was solemnized in terms of South African law which no longer provides for adultery damages. In that case, the honorable court vehemently disagreed with Defence counsel’s submissions that the marriage was a South African one and therefore South African laws should apply.On the mere basis that the parties involved were Zimbabwean and the adulterer was also a local Zimbabwean, the court emphasized that no matter the legal evolution in South African and English law, our courts are not ready to dispense with adultery damages.

If the court is willing to extend its jurisdiction and forcefully bottle foreign marriages which are otherwise monogamous into conforming with the local position, should arguments of interpretative analysis (which naturally differ amongst legal minds) deviate the court from shifting from its conservative position on this question?

Closing remarks

The law with regards to adultery is still open to debate and only the court can save the public from various misleading interpretations like what it did in Chigwada v Chigwada. We will have to see the court’s stance towards these claims now that civil partnerships are part of our law.

Drafting problems

The legislature should endeavor to foresee some of the sensitive implications that can result from legal reform. Some reforms may lead to unintended consequences in the long run since laws do not exist in isolation and society comprises diverging schools of thought that may want to capitalize on a possible lacuna or gap in the legal drafting framework.

Recommendation

It is therefore recommended that when making legal reforms, the legislature also introduces “clarification clauses” especially on hot and sensitive questions that may divide public opinion. Such situations as what we have on the question of adultery damages are undesirable since they signal legal uncertainties and possible conflict of interest in interpretation of laws. These two nemesis are undesired requisites for the dilution of rule of law and may lead to a possible legal anarchy.

Munashe Obrian Gutu is a young Zimbabwean attorney. He writes this opinion article in his personal capacity. This article is for informative purposes and does not in any way constitute any form of legal advice.