Adulterous Wife Wins

An adulterous wife who was “punished” in terms of the Divorce Act when a magistrate ruled that she must partially forfeit marital benefit because of her “substantial misconduct” has won the first step of her legal quest to have Section 9(1) of the Divorce Act declared unconstitutional.

The wife appealed after a magistrate ruled that she must forfeit part of her claim to her husband’s much larger estate because of her numerous adulterous relationships.

Two Judges of the High Court in Pretoria ruled there was merit in the wife’s argument that the section of the Divorce Act was wholly outdated and unconstitutional.

This was particularly because it punished a party for “substantial misconduct” by depriving him or her of patrimonial benefits of the marriage in the absence of proof of how such conduct may have impacted on the estate.

Acting Judge Ishmael Semenya and Judge Mabel Jansen ruled that the wife must join the Justice Minister and Speaker of Parliament as parties to the litigation, as the court was not empowered to declare the provisions of the Act unconstitutional without the correct procedure being followed.

Judge Semeya said in his view the section of the Act might infringe upon the constitutional rights to equality of married persons who were in the process of divorce.

With the abolition of marital power in terms of the Matrimonial Property Act, parties entered into a marriage on an equal basis, but at the time of a divorce, the “guilty” party might find him or herself in a weaker bargaining position with regard to either redistribution of property or the sharing of patrimonial benefits if the marriage was out of community of property with the inclusion of the accrual system.

This infringed on the right to equality and it was clear that the applicant and her husband had threatened to punish each other in as far as properties were concerned, the Judge said.

He said there might be cases where a woman, for fear of divorce, might secretly terminate her pregnancy and where her spouse, armed with this, could successfully approach he court for forfeiture, which would breach the woman’s right to reproduction.

Being forced to remain in an unhappy marriage, for example caused by violence, for fear of losing patrimonial benefits could also deprive a spouse of the right to dignity, the right to freedom and security of person, Judge Semenya said.

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