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Suing a partner's lover in divorce matter


Suing for damages from your partner's lover as a co-defendant in a divorce matter - Erasmus v Heine (39407/2010)

From time to time a client instructs me to cite as co-defendant in the divorce matter a third party who has had an affair with his or her spouse during the course of the marriage. The usual kind of defence to this action by the third party is normally that the marriage had already irretrievably broken down at the time when the affair started. 

A recent case involved the divorce matter of Suné Erasmus, who got divorced in September 2011 after a 6 year marriage. She had allegedly been involved in an unduly intimate relationship with one Renier Heine, defendant. Presiding Judge L.I. Vorster ordered that defendant pay the damages sought, being the amount of R75 000 to D.J.E. Erasmus, plaintiff. This award is particularly high in South African Law.

In 2009, Suné while working for a pharmaceutical company met Heine, who was a managing director of an affiliated company which initially shared the same office building. That is how the extra-marital affair had begun.

In this case the Judge emphasised the sanctity of a marriage.  He stated “The marital rights of sexual intercourse, affection and devotion of the married parties are still held in high esteem in law. The right of an aggrieved party to protect these rights by way of a damages claim is still part of our law and thus enforceable”. In this case all three parties professed to be Christians. The Judge furthermore stated that the sanctity of those rights and obligations is beyond question in view of the Christian faith professed by all the parties.

In order to succeed with a claim for damages against a third party, the court obviously has to look at the evidence to prove that the third party was the sole reason for the breakdown in the marriage. The Court looked at the family holiday pictures as well as some photos taken at a wedding ceremony attended by the married couple. A photo taken at the wedding showed Suné “happily having a ball on the dance floor with her then husband”. It was clear on the evidence that the marriage had not broken down irretrievably at the time when the affair started. On Suné’s birthday speech, she had furthermore stated that her husband was her “absolute soul mate” and that she loved him “incredibly much”.

Very often in our divorce law, parties are guilty of having extra-marital affairs. The reality of the matter is that once a marriage has broken down irretrievably, parties are allowed to move on with their lives. However, if you are still sharing the same bed with your spouse, and the marriage has not broken down irretrievably, you are betraying the sanctity of a marriage, and the courts will award damages.

Clients often ask me whether they are allowed to engage in extra-marital affairs while the divorce is under way. I would not recommend this, as there is always a possibility that this may be used against you in a divorce matter and that there may be a potential claim against the third party.

article written by Cape Town divorce attorney, Peter M Baker

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