The ManicaPost
Trust Maanda
WE often read about a man beating up a man who would have committed adultery with his wife.
Sometimes spouses beat their spouses for suspecting them of having committed adultery.
Adultery is consensual intimacy between a married person and someone other than their spouse.
The one whose spouse commits adultery, the plaintiff in a legal suit, has to prove that he was married to the spouse with whom a third party, the defendant, would have committed the adultery.
He should also prove that defendant knew of the existence of plaintiff’s marriage.
In terms of the Marriages Act, we have a civil marriage, which is monogamous, a registered customary law marriage which is potentially polygamous and an unregistered customary law union.
The third type of cohabitation is a civil partnership.
To prove adultery, the plaintiff should not only allege, but prove intimacy.
WhatsApp texts between the alleged adulterer and the plaintiff’s spouse is not proof of adultery.
For the defendant to succeed in their defence, they should show that they were not aware that the spouse of the plaintiff was married, deny intimacy completely or that the plaintiff consented to the intimacy.
It is difficult to imagine under what circumstances a spouse would consent to their spouse to have intimacy with a third party.
The remedy available to a plaintiff is to approach the courts for a claim of damages.
Damages for adultery are for the compensation of the plaintiff by the defendant.
Damages are for contumelia, which is the loss of dignity that the plaintiff would have suffered and for loss of consortium.
Consortium is the comfort, warmth, company and society of the spouse in the wrong, which would have been alienated from the plaintiff by the defendant.
In assessing the quantum of damages, the courts consider various factors.
Each case is decided on its own circumstances.
If there was marital bliss between plaintiff and his spouse before the adultery, the award of damages will be higher than if the marriage was already broken.
If the adultery results in a divorce, the damages will be higher than if the plaintiff condones the adultery.
The court considers factors such as the character of the offending spouse involved, social and economic status of the parties, whether the defendant has shown contrition and apologised, the decrease in the value of money and the level of awards in similar cases.
The award for damages is for the preservation of sanctity of the marriage institution, which is established in Section 78 of the Constitution of Zimbabwe.
Other countries have outlawed the delicti of adultery.
In Zimbabwe, in the case of Njodzi v Matione, relying on cases decided elsewhere, an attempt was made to have a claim for adultery damages declared unconstitutional.
The court rejected that and held that adultery claim remains part of our law and that a claim for adultery protects the marriage institution and compensates the innocent spouse for wrongful conduct.
It remains to be seen how long it will remain part of our law because there is presently a case before the Constitutional Court in the case of Nyakudya V Chabvonga, in which action for adultery is being challenged as being unconstitutional.
Some of the reasons for this challenge are that the claim is contrary to the rights of freedom of association.
The arguments are that association of two consenting adults is an exercise of a right to freedom of association and goes against the right to privacy because the evidence of the sexual escapades, raunchy texts and the adulterous associations, if led in court will infringe the right to dignity and privacy of the defendant.
The case is yet to be determined.
A man in a customary law marriage can the defendant who engages in an adulterous relationship with his customary law wife.
A customary law wife cannot claim adultery damages because customary marriage is potentially polygamous.
The Marriage Act, by introduction of a civil partnership, has introduced a grey area on whether a claim for adultery damages can be made by a spouse in a monogamous marriage against a civil partner of their “adulterous” spouse.
A civil partnership is what was known as kuchaya mapoto.
It is also not clear if a civil partner can sue for adultery committed by a third party with their civil partner.
I reserve this discussion to an instalment on the types of marriages in Zimbabwe and the respective rights of the parties in each of those marriages.
Rather than bashing or killing an adulterous spouse’s lover, consider getting damages from him.
An adulterous spouse is not worthy going to jail for and adultery is not worth getting bashed for.
Trust Maanda is a legal practitioner. He writes in his personal capacity. He can be reached at +263 772432646.
