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How affairs impact divorce settlements

I recently took over a case from another attorney. I was in fact the third attorney on record in the matter for this specific client. My client claimed in his court papers that his wife forfeited her rights to share in any equity in the joint estate, and one of the reasons given was that she had had an affair.

When we were at court on the day of the trial my client was not able to give me any concrete evidence of the affair. All he had was a letter wherein his wife apologised for certain things, for leaving the family home and moving out and hurting him.

I asked my client where in the letter she confesses to having an affair and he referred to one sentence where his wife apologises for having “disgraced” him. This unfortunately cannot be seen as a direct admission of an affair.

My client’s friend was also at court and said that he would sign an affidavit wherein he states that my client’s wife had an affair. This would carry some weight as evidence, but what we would really have needed in this case is a photograph of the man she had had an affair with or a confession by him. My client did not have evidence like that.

It is typical to have a “pre-trial conference” with the two attorneys, two parties and the judge before the matter is heard in open court. The aim of this is usually to discuss the case in a final attempt at settling outside court. The judge gives a view on what would possibly be decided if the matter were heard in court.

At the pre-trial we discussed the alleged affair with the judge. She agreed that there was no concrete proof of the affair. Different judges have different views on affairs and the seriousness thereof. Three different judges for example would give three different viewpoints on the seriousness of an affair.

During the pre-trial this particular judge asked “how serious is an affair anyway these days?”, and that is the view of many judges these days. The parties were not even living together anymore at the time period when the alleged affair took place.

At the end of the day our client did succeed in getting his wife to walk away with no equity, but it wasn’t with his argument of infidelity. We were able to prove that she shouldn’t share in any equity as the marriage was only for two years and she had failed to contribute to the growth in equity.

An affair can be more serious from case to case, depending on the evidence. Each case and each judge has a different view on an extra-marital unduly intimate relationship. I always urge clients to try and get proper proof of an affair before alleging that there was one.

This article was written by Cape Town attorney, Peter M Baker

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