The decision in Vivian v Kilian 1927 AD 449 resulted in South African courts recognising that a person has a claim for damages against a third party who had engaged in adulterous behavior with that person’s spouse.
The grounds upon which a person could rely on to pursue such a claim were:
- Adultery: Defined as the act of having sexual intercourse with a married person; and
- Enticement or Alienation of Affection: Defined as giving attention to a married person with a view and intention to make that person abandon or stray from their marriage.
The claim created by the decision in Vivian v Kilian existed in South African law and was developed over time from 1927 until 2014, notwithstanding that the grounds of divorce changed to a no fault based system with the promulgation of the Divorce Act in 1979.
On 25 September 2014, in the decision of RH v DE [2014] ZASCA 133, the Supreme Court of Appeal of South Africa abolished the existence of the claim by inter alia stating that “in light of the changing mores of our society, the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained; that the time for its abolition has come.”
In reaching its decision the Supreme Court of Appeal considered various factors, including but not limited to:
- The origin of the claim in English Law;
- That the action is outdated, archaic and that it has lost its place in the context of a modern society;
- That 100 years ago, South African courts recognized that adultery was no longer a criminal offence in the decision of Green v Fitzgerald 1914 AD 88;
- That adultery was abolished as a ground of divorce by the Divorce Act of 1979;
- The consideration that other civil law countries such as France, the Netherlands, Germany and Austria did not recognize a claim based on adultery;
- That other countries that inherited the action from English had since abolished the action because it no longer conformed with considerations of morality;
- That the action was available against a third party only and not against the adulterous spouse
As a result of the court’s findings on 25 September 2014, the act of adultery was found to no longer be wrongful in the sense that it attracts legal liability and thus no longer available as part of our law. It must be noted that while a claim on the abovementioned grounds no longer exists in our law, the existence of other claims connected to the institution of marriage in our law, such as an action for patrimonial harm suffered by a person through the loss of consortium of an adulterous spouse and actions for abduction, has yet to be decided upon by the courts.
