ADULTERY currently, Adultery is considered a civil wrong and you can be sued for adultery damages. However, there is a legal challenge against the law because some consider it old fashioned. This article is on the legal position & legal challenge against Adultery.
Adultery is committed by a third party when he or she has sexual intercourse with a person whom he or she knows to be someone’s spouse. The offended party can claim damages for humiliation and loss of the companionship and society of the guilty spouse.
The spouse can recover damages for loss of a spouse’s consortium (Loss of consortium refers to damages awarded for loss of love, affection, and comforts supposedly found in a marriage. Loss of consortium includes loss of conjugal rights attendant with marriage.
As well as personal injury or contumelia (the emotional injury suffered by the cheated spouse to compensate for the betrayal, pain, shock, hurt, insult and the indignity emanating from the act of adultery. It is to compensate for the late nights and weekends, the untouched suppers, suspicious calls and chats at odd hours. The damages quantum depends on how much the aggrieved spouse is able to prove the inconvenience suffered.)
Who can sue?
1. A husband married under any marriage regime 2. A wife married under a civil marriage or marriage registered under Marriage Act Chapter [05:11] only Who is sued? The third party or the person who was or is having an affair with your spouse.
What are the defenses available?
That one was unaware that the adulterous spouse was married, or The complaining spouse connived at the adultery; or Rape.
What are the factors to be taken into account in assessing damages for adultery?
1. the character of the woman or the man involved; the social and economic status of the couple;
2. whether the accused has shown contrition and has apologized
3. the need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from – the errant spouse
4. the level of awards in similar cases
5. the decrease in the value of money
6. lack of consortium as well as contumelia.
7. The quantum of damages should reflect all the circumstances surrounding the occurrence of the adultery, including P’s own conduct in the matter. like when one was clearly aware of the affair for years and condoned it.
8. Where the marriage still subsisted in spite of the adultery, damages could only be awarded for contumelia and not for the loss of consortium.
Arguments for the abolishment of adultery law
1. It infringes the constitutional rights to freedom of association, right to privacy and the right to equal protection to the law. It is argued that the private sex lives of consenting adults are being infringed upon. ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏ ͏
2. it allows only one party to extramarital affair to be sued, with the other party being spared, therefore the claim of adultery damages is inconsistent with the right to equal protection and benefit of the law.
3. the element of wrongfulness in the delictual sense is lacking and therefore, delictual claims for adultery are outdated and should be abolished.