Traditionally it is not always that easy to successfully sue a third party in a divorce for breaking up your marriage. It is not always that easy to prove that somebody else is directly responsible for the breakdown of your marriage.
I had a client who consulted me recently and explained to me that his wife was constantly on “mxit” chatting to other men, even whilst they were in the same bed together, and that she had several affairs. I advised him that from a legal costs perspective it may not be worthwhile to sue any third party. If unsuccessful he would have to fit the bill of his wife's legal team.
In a recent landmark decision Kamini Greadi started an extramarital relationship with a certain Anand Gounder of Pietermaritzburg. She had to pay R75 000 to her lover's wife because the court found that she was directly responsible for the breakdown of their marriage.
Many legal experts believe that this case may be the first of many where a substantial amount of damages is awarded against a “third party” in a divorce. It appears to be a new record damages claim.
In this case Kamini pursued Anand, the court found. Even after Anand's wife found out about the affair, Kamini continued pursuing Anand. Kamini however has indicated that she believes herself to be innocent and intends lodging an appeal against the decision.
Another extra-marital damages case which has made the newspapers recently is that involving J. Arthur W. Brown. Brown was the former head of Fidentia, and involved in a huge money scandal. Brown's former friend is suing him for R500 000 for allegedly ruining his realtionship with his wife. This decision should be an interesting one.
I always ask my clients to give me substantial proof of the adultery before deciding whether to pursue a claim of this nature. I ask them where and when adultery was committed, for example was it at the Formula One Hotel or at a house, and was it on 16 June 2009 at 16h00 or 15 May 2009 at 13h00?
The more evidence we have the better the chances of success in court are. You could, if you have the necessary funds, instruct a private investigator to follow your spouse to take photos of him or her with his or her lover in order to substantiate your claim.
I normally find that claims of this nature when suing a third party are usually only successful when you can prove that your marriage was still very strong at the time of the affair. If the third party can prove that the marriage had broken down as informed by the adulterer, the third party will succeed in his or her defence.
Each case is different and us attorneys must determine and advise our clients correctly regarding chances of success. Not everyone can afford to sue a third party in a divorce, as this is usually a High Court matter, and funds are required to pay an Advocate usually. If successful however, an aggrieved party could be well compensated.
article written by Cape Town divorce attorney, Peter M Baker
petermbaker@yahoo.com