Adultery: guilty will cough up – judge

Tania Broughton

DURBAN: If you stray, you must pay. This was the warning by a KwaZulu-Natal High Court judge to those whose marriages break up because of adultery.

In a recent judgment in a matter in which a KZN medical specialist was facing a divorce claim for half his assets, Judge Mohini Moodley acknowledged that the stigma once attached to adultery had diminished.

The man’s wife wife divorced him after he had two affairs.

But despite the acknowledgement, the conduct of those who have affairs must be taken into account when marital assets are divided, the judge ruled.

The Constitutional Court ruled last year that “wronged spouses” could no longer sue third parties for damages as a result of adultery “because it seems mistaken to assess marital fidelity in terms of money”.

But his recent judgment confirms the right of those betrayed to cite spousal misconduct in negotiations and court proceedings dealing with the financial consequences of the split-up.

Evidence in the case before the judge was that the couple were married in 1972 out of community of property and with no accrual. The marriage broke down in 2010 and the wife, in her divorce claim, sought monthly maintenance and 50 percent of his estate, citing his affairs and saying she had contributed directly and indirectly to his financial situation.

The wife did not testify at the trial, however, as the husband admitted to the affairs. The first had lasted for four years and he had been “remorseful and guilt-ridden”.

They had agreed to stay together, although for the first four years after that, she had physically and verbally abused him, apparently unable to forgive him. The second affair was with someone from her book club, and this ended their marriage.

Much of the evidence during the trial centred on the couple’s financial affairs, their successful and failed business ventures, and how these were funded.

Regarding the adultery, the judge said: “Unfortunate as it may be, affairs, instead of an observance of marriage vows, are prevalent irrespective of age or the duration of marriage. The disapproval and stigma once attached to adultery has diminished, and affairs no longer receive the censure they used to.

“Nevertheless, this relaxed attitude towards infidelity ought not to unduly diminish the significance of such misconduct when determining an equitable redistribution. The effect of betrayal remains a relevant factor.”

The judge said that in this case, the wife had been devastated by the first affair, but had chosen to save her marriage.

However, it appeared her husband had not cared enough “to spare her further humiliation of embarking on an affair with a member of her book club at a time when their marriage had just attained a measure of harmony”.

“Although passion is seldom fettered by common sense and selflessness, having experienced the bitter consequences of his first affair, one would have expected him to be more circumspect. This affair left his wife a ‘woman scorned’, whose anger and pain has been fanned by the litigation.”

The judge said the husband had redeemed himself somewhat by buying her a new home, increasing the monthly maintenance without being ordered to do so, and providing her with a car and medical aid.

She said while the wife’s 50% claim was also not sustainable because it was clear her ex-husband, through his professional income, had been the financial crutch of the marriage, the wife was entitled to “financial security and material comfort”.

She ordered him pay maintenance of R22 000 a month, that he continue to pay the bond on her new home, that he transfer the car unencumbered into her name, and pay her an additional lump sum of R500 000.