How to sue a third party for causing the irretrievable breakdown of a marriage. When and how to include them in the main divorce summons.
There are two ways of suing a third party who broke up your marriage. The first is where the third party is cited as co-defendant in the main divorce summons and the other way is where the third party is sued alone, without the plaintiff’s spouse even being cited as a defendant.
In the first scenario mentioned above, if A and B were married and B had an affair with C, A could sue B for divorce and B would be cited as first defendant. C, the third party, would be cited as second defendant in the same summons. The two parties, B and C, would in this way be sued in the same summons and under the same case number.
In the other scenario, A would sue C and B would not be cited as a defendant at all in the summons. This quite often happens in a situation where A and B are already divorced, and then A decides to sue C after the fact.
The decision to sue C, the third party, in the same summons as B or in a separate summons, is up to the client at the end of the day. It may, however, be easier to sue the third party in a separate summons after the divorce. The reason being by that stage it would already be a fact that the marriage had broken down irretrievably, as the parties, A and B, had already been legally divorced. All that would then remain would be to prove that the third party, C, was responsible for the irretrievable breakdown of the marriage.
One of my clients asked me if the third party can be sued alone without the divorce proceeding. The answer to that is no. There would be no proof that the marriage had broken down irretrievably as the husband and wife still remain legally married. If you wish to sue a third party you must unfortunately then also be prepared to go ahead and divorce your spouse.
When suing the third party it is important to have your facts straight. It would be ideal to know the exact date the adultery was committed and where for example. As regards the quantum one can sue for so-called “contumelia”, as well as for the loss of the comfort, society and services of the said spouse.
One must be careful before suing a third party at all without having the necessary proof. If there is no successful result at the end of the day, the party being sued can claim costs if that party is successful in defending themself. As the saying goes “he who alleges must prove” and if there is no proof that the affair led to the irretrievable breakdown of marriage, the plaintiff’s case will be dismissed.
article written by Cape Town divorce attorney, Peter M Baker