Adultery is voluntary sexual relations between a party who is legally married and a person who is not their spouse. According to religious beliefs adultery is considered a sin, however in the eyes of the law it is a breach of contract. In terms of the law Marriage is a contract sui generis (of its own kind) entered by two willing parties.
In Zimbabwe, Civil Marriages are governed by the Marriage Act [Chapter 5:11] (formerly Chapter 37). It is a monogamous marriage meaning that it is between one husband and one wife. Neither of the parties is permitted to have any other spouse apart from the one they are married to, as long as the marriage subsists. Parties to this marriage are automatically forbidden to engage in any sexual relationships with a third party while still legally married. Technically parties in the subsisting marriage are in a contractual agreement and according to the requirements of a contract agreement, capacity, consideration, and intention, make it valid. Therefore the contractual obligation of the marriage exists as long as the marriage subsists.
Can one sue for adultery damages in Zimbabwe?
Adultery is considered an infringement or damage to a marriage however it is not a crime. It is not possible to be arrested for committing adultery, however one can claim damages from a third party who has caused harm to a marriage by intentionally interfering in the marital relationship. In Njodzi v Matione HH-37-16 the High Court in Zimbabwe, held that, "adultery is an injury occasioned to the innocent spouse because of the adulterous relationship.
The spouse can recover damages for loss of a spouse's consortium (the right of association and companionship with one's husband or wife) as well as any patrimonial loss suffered and also personal injury or contumelia (the hurt, insult, shame loss of dignity and injury one experiences due to the adulterous relationship) suffered by the innocent spouse, inclusive of loss of comfort, society and services." To prove that one has caused harm intentionally in the marriage circumstantial evidence must be produced showing that the adulterous spouse has committed adultery, this is evidence is one which infers the presence of an adulterous relationship past present or future , for example eye witness accounts, audio tapings and photos. Adultery damages are delictual damages arising from a delictual wrong occasioned to an innocent married party.
Is it Constitutional?
Our courts have an outstanding view when it comes to adultery and the existence of marriage. In South Africa the Constitional court held that it is unconstitutional to sue a third party for adulterous damages with one's spouse. However, in Zimbabwe Njodzi v Matione HH-37-16 the High Court of Zimbabwe, held that the claim for adultery damages is not unconstitutional. In terms of the law the marriage institution in Zimbabwe is protected under section 78 of the Constitution of Zimbabwe and it is well established in the culture, religion and tradition of the country. The purpose of making a claim against adultery is to protect the sanctity of the marriage. The Zimbabwean court is of the view that the dignity of the adulterer is not more important than that of the affected party whose marriage has been infringed. A third party who intentionally causes harm in one's marriage ought to compensate the affected party for the injury caused. It is safe to say that adultery remains wrongful in Zimbabwe and that there is nothing unconstitutional about an adultery damages claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.