An attorney is often approached by a divorce client and instructed to sue a third party in a divorce action for having an unduly intimate relationship with the client’s spouse and breaking up the marriage.
Normally the attorney would start off by means of a preliminary letter to the third party. In such a letter the attorney on behalf of his/her client would allege that there was an affair, and for how long there has been an affair, how the client is aware that there was an affair (he/she could be aware either by sms, email, photographs, letter, or any other evidence). The attorney would furthermore allege that somebody had admitted the affair to his/her client, and in the normal course one may sue the third party for e.g. R200,000.00, R100,000.00 being contumelia inflicted upon the client, and a further R100,000.00 for the loss of love, affection, support, society and services of the spouse.
This is however a costly process, and is normally a high court matter as it involves a sum of money over R100,000.00. If the preliminary letter mentioned above is met with no response, the third party would normally be joined as a second defendant in a divorce action.
If the third party does not have much money, it would no doubt be difficult to derive financial gain out of him/her.
One factor that the court would look at in determining whether a client can be successful in a claim against a third party would be when the affair started. Did it happen while the parties were still living together? Did it happen after the marriage had already broken down irretrievably? If for example the affair happened ten years ago, it may not be seen to be of extreme relevance anymore. It is important that the parties have been married for a long time to be successful in such a claim, and that you are able to prove sexual relations. One should keep all evidence such as photographs, sms messages and videos in order to substantiate your claim.
From a practical viewpoint the threat against a third party for financial damages often leads to the termination of the extramarital affair, and the evidence thereof is very useful to be used in a divorce matter.
This article was written by Cape Town divorce law specialist, Peter M Baker