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Affairs and divorce

Affairs are one of the biggest reasons for divorce. Traditionally it is not always that easy to successfully sue a third party in a divorce for breaking up your marriage, and it is usually difficult to prove that somebody else is directly responsible for the breakdown of your marriage.

Why not to have an affair while getting divorced

In a recent case in the Pretoria High Court a wealthy 66 year old man was getting divorced from his 57 year old wife, and started having an affair with another younger lady.

During the court proceedings his wife was claiming maintenance from him after a long marriage. One of the arguments raised by the wife was that her husband had spent a considerable amount of money on paying for breast enlargements for his new girlfriend. In the end this counted against him in the divorce case. The court found that if he had R28 000.00 to pay on breast enlargements, then surely he could afford maintenance of R35 000.00 per month for his wife. This is what the wife was awarded in the end as well as R275 601.00 for furniture.

In this particular case the man had been spending a considerable amount of money on his new girlfriend. The man was extremely wealthy and was a retirement village magnate. The man had left a work function with his new girlfriend where lots of jagermeister had been drank, and had stayed in a guesthouse with her at Waterkloof, Pretoria that same night. He had never returned to the matrimonial home. His new girlfriend was also in the process of getting divorced.

In her court papers the wife had asked for a relocation fee of R3 million, R500 000.00 for new furniture and R70 000.00 maintenance per month. She had also received an interim payment from her husband of R300 000.00 the previous year. The man had assets valued at between R150 million and R250 million. He also earned approximately R1 million a month from his retirement villages. The couple owned two huge houses in Waterkloof. One of them was sold as an ambassadors residence and the second was on the market for R12 million.

The man’s argument in the case was that his wife earned R40 000.00 per month, and was more than capable of looking after herself without his assistance. The court rejected this argument, and also looked at the circumstances which led to the breakdown in the marriage. The court found that the husband’s conduct in ending the marriage relationship was cruel, and considering the husband’s income and value of his assets, he was definitely expected to maintain his wife post-divorce to the same extent as he had maintained her during the course of the marriage.

The parties in this matter had been married for 18 years, and the court found that the wife had to be compensated in the form of maintenance for the 18 years of her life which she had devoted to her husband.

This case further illustrates why it is probably best not to have an affair while getting divorced. If you are going to spend large amounts of money on your new partner while getting divorced, this will certainly come out at court, and will count heavily against you, particularly when the expenses are for unnecessary things like breast enlargements.

Mxit & affairs

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.

Greadi v Gounder

In landmark decision Kamini Greadi, who had started an extramarital relationship with a certain Anand Gounder of Pietermaritzburg, was ordered 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

When was adultery legalised in South Africa?

As related in the book, Genius for the Defence: "In 1916 Morris was given a case that called for close study of Roman and Roman Dutch Law and the great jurists' writings. A substantial sum depended on the outcome and he proved he was capable, when the occassion arose, of applying himself industriously to the law and ancient precedent.

A man divorced from his wife for adultery had married his mistress. When he died some years later his will named his second wife sole heiress. The children of the first marriage lodged an objection with the Master because the woman had lived in adultery with their father. The Master rejected the claim as the only evidence supplied him was a copy of the divorce proceedings. The children then applied to court to upset the bequest.

Charles Ward, a judge famed for his prodigious knowledge of case law, heard argument. Morris, briefed for the children, realised he would have to know his authorities as well as his facts. With the aplomb of of a learned senior he quoted numerous decisions under Roman and Roman Dutch law to show that a woman guilty of adultery, forfeited any benefit the man granted her in his will. Moreover, no authority existed for holding the Roman Dutch law on the point had been abrogated.

Ward examined the centuries-old law and agreed with Morris. Though the man and woman in the case were married at the date of the will, and at death, it made no difference to the result; the marriage itself could be pronounced invalid. The application to disinherit the beneficiary would succeed if the court could be satisfied the parties had committed adultery.

Morris called the necessary evidence and won a case that at once made law and caused anxiety to attorneys preparing wills for clients who had married their mistresses. But in 1919 the Appellate Division reversed the decision ruling that adultery was no longer a crime; that the guilty parties could marry and their children succeed to their estates.

The story goes that Morris was asked his opinion of the change in the law for which he was partly responsible. 'Oh! It wont affect me.' he grinned, 'but I expect half the husbands in Johannesburg will soon be changing their wills.'"

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