New Marriages Act: The Concept of Adultery Damages

Since the introduction of civil partnership in the new Marriages Act [Chapter 5:15] (hereinafter referred to as the Act, there has been a considerable uproar, particularly among women in civil marriages.

There is however no need to panic, because a civil partnership is not legally recognized as a marriage in Zimbabwe and adultery damages can still be sought in court.

The Act introduces among other things the concept of civil partnerships.

This article will address whether or not the act has done away with the delict of adultery damages.

Civil marriage under the Act

According to section 5 of the Act, a civil marriage is monogamous in nature and no person may enter into another marriage while their current marriage is still in force.

This means that the participants to a civil marriage are prohibited from either getting married to someone else or to conduct any extra marital affairs.

Civil partnership

Section 41 of the Act states that a civil partnership is a relationship formed by a man and a woman over the age of 18 who have lived together without being legally married.

The Act further stresses that Civil partners must have a genuine domestic relationship as a couple living together.

The existence of a civil partnership is only recognized for the purposes of the distribution of property upon the dissolution of that marriage.

Section 41(5) of the Act, seem to suggest that a civil partnership can exist even if a person is legally married to another person and upon dissolution of that partnership, a court can apply principles outlined in section 7 to 11 of the Matrimonial Causes Act [Chapter 5:13] to the division, apportionment or distribution of the assets of the civil partnership.

Adultery damages

When an individual is in a civil marriage and engages in an extra marital affair with someone other than their spouse, it is considered as adultery.

The spouse of that person who would have engaged in the extra marital affair has a right to sue under common law for adultery damages.

The claim for adultery damages is against the third party who has been adulterous with a married person.

A civil marriage is monogamous, therefore, a third party who would have sexually interfered with a couple’s marriage can still be sued by the innocent party.

Has the claim for adultery damages been outlawed by section 41 of the Marriages Act?

The Act has not ousted the common-law delict of adultery damages.

It is common cause that where the legislature intends to oust the common law position it should expressly do so.

It is evident that when adultery is committed there is an infringement of the rights of an innocent spouse.

In this regard therefore, the spouse of a civil partner still reserves the right to bring an action for adultery damages against a person who enters into a civil partnership with their spouse.

The rationale for a claim for adultery damages is the preservation of the institution of marriage.

There is no doubt that public opinion frowns upon adultery.

The general consensus is that adultery is frowned upon in the modern day Zimbabwean society and it is harmful to the moral welfare of society.

The convictions of the society are the utmost consideration of the courts when adjudicating matters before them including those of adultery.

Conclusion

In conclusion thereof, the delict of adultery has not been outlawed by the introduction of civil partnerships in the new Marriages Act.

A civil marriage participant retains the right to file a lawsuit for adultery damages against a third party who forms a civil partnership with the man or woman to whom the civil marriage is in favour.

Plaxedes Tavirai is an intern and can be contacted on plaxedes@zenaslegalpractice. Com.