SOUTH AFRICA: Is marriage still a sacred institution?

PRETORIA, South Africa (Pretoria News), August 7, 2008: By Zelda Venter A Pretoria high court judge has ruled that marriage is still a sacred institution and that the instituting of damages claim by an aggrieved spouse resulting from adultery was not outdated. Judge Ben du Plessis' judgment comes in the wake of a damages claim instituted by Albertus Wiese against Chris Moolman who allegedly had an adulterous relationship with Wiese's wife Lente between April 2001 and May 2002. The couple (Wiese) divorced in August 2003 as a result of the affair. Before the case started, Moolman's counsel advocate F Ras raised a special plea, stating that a damages claim arising from adultery no longer has any existence in the South African law, as it is outdated. The parties and the judge agreed to argue this point first. If the judge agreed with the view of the defendant, it would have been the end of the damages claim and it would have closed this avenue to other similar claims. But Du Plessis found that marriage and the family are social institutions of vital importance and that it should be respected. Adultery, the judge found, did not fit within the institution of marriage. Ras gave various reasons as to why adultery in modern society should no longer result in a possible damages claim. He said this was an outdated concept and not part of the modern concept of marriage. But advocate Ronel Tolmay SC, acting on behalf of Wiese, disagreed arguing that "our laws still embraced the importance of marriage as an institution even in our modern society". Tolmay said it is clear that modern society still embraced marriage and the morals attached to it, which include no sex out of wedlock. Du Plessis agreed with this and said "our law acknowledged that one way of infringing on a married person's rights, was to commit adultery with that person's spouse". The "innocent" party has the right to institute a damages claim against the third party who committed adultery with the "guilty" spouse. The judge said the uniqueness of marriage as an institution had been emphasised by several courts in the past. He said it is common cause that marriage partners chose out of their own free will to commit themselves to live together, to be committed to each other and to only have sexual relations within the marriage. "Adultery thus directly infringes on these undertakings," Du Plessis said. He said adultery also in terms of the country's existing law affected the aggrieved party's dignity and other rights. Du Plessis said within the marriage there is mutual love, trust and support. He said the manner in which this existed, changed from marriage to marriage. "Every man kisses his wife in his own way," he said. Du Plessis said each spouse has the right to expect fidelity within the marriage. He said: "To sum up, adultery directly infringed against the marriage partners' undertaking to each other to sexually perform only within the marriage." Du Plessis said he did not understand Ras' argument that in modern times the innocent spouse was not hurt by adultery. The judge said it was clear that innocent spouses are hurt by adultery. "Love triangles and the strong feelings which goes with it are today just as prevalent as in the past. "Love triangles today, as in the past, are also the motivation for many crimes," he said. Mankind, the judge said, is just so that they are hurt by adultery. He said the question raised in this case was whether the morals of the community had changed so much in modern times that adultery was no longer seen as wrong. Du Plessis said it is clear that the community still viewed marriage as sacred and that it is important that the law protected innocent spouses against the interference from outside into their marriages. © 2008 Pretoria News & Independent Online (Pty) Ltd