Explained: Infidelity - What It Means Legally

 

The tabloids and social media have exploded with news that a certain CEO was allegedly caught in an extramarital affair. While the gossip mill is spinning, many are left wondering: can cheating on a spouse carry legal consequences? Is adultery still relevant in the eyes of the law?

 

In this post, we explore the legal implications of infidelity, particularly in jurisdictions like South Africa, where marriage is a legal contract, and adultery can still have consequences - even if public attitudes have changed. 

 

 

Adultery and the Law - Is It a Crime?

 

In most modern legal systems, adultery is no longer treated as a criminal offence, and that includes South Africa. Courts have moved away from moral judgment and toward protecting individual rights, privacy, and dignity. 

 

        Key point: In South Africa, adultery is not a criminal offence, and it cannot result in jail time         or a fine.

 

However, this does not mean that infidelity is without legal consequences. 

 

Impact on Divorce Proceedings

 

South African law is based on a no-fault divorce system. This means that a party doesn't need to prove adultery or misconduct to get divorced - they only need to show that the marriage has broken down irretrievably. 

 

That said, adultery can still influence certain aspects of divorce, such as:

 

  • Division of assets - While infidelity doesn't automatically affect how assets are divided, a spouse might argue that thier partner's conduct led to the breakdown and seek a more favourable settlement. 
  • Spousal maintenance - A court may consider each party's conduct when deciding whether and how much maintenance should be paid. 
  • Custody of children - Courts focus on the best interests of the child, but if a parent's conduct (e.g. exposing children to unsafe or unstable environments due to an affair) is proven to be harmful, it could influence custody decisions.

 

Can You Sue the Mistress or the Cheating Spouse?

 

Historically, South African law allowed a claim for "contumelia and loss of consortium" - essentially, suing a third party (the mistress or lover) for interfering in a marriage. However, in 2015, the Constitutional Court ruled that this claim is no longer valid in South African law. 

So, while such lawsuits may still exist in a few legal systems elsewhere, you can no longer sue your spouse's affair partner in South Africa. 

 

Reputational and Contractual Consequences

 

For public figures, the biggest fallout may be reputational. Depending on the nature of his/her profession and contracts:

 

  • Endorsements and sponsorships may be terminated under "morals clauses."
  • Employment contracts, especially in high-profile or religious organisations, may have clauses tied to personal conduct.
  • Public backlash can lead to loss of income, social standing, or even termination of board memberships. 

 

In some cases, these consequences may result in civil litigation, especially if breached contracts lead to financial loss. 

 

The Human Side of the Law

 

While the law has evolved to protect privacy and dignity, infidelity often has deeply personal consequences - emotionally, financially, and socially. The legal system may not punish adultery directly, but it still plays a key role in helping parties navigate the fallout, particularly through divorce, maintenance, and parental rights. 

 

Conclusion:

 

While the now infamous CEO's personal scandal may seem like a tabloid fodder, it raises real legal questions about marriage, privacy, and personal conduct. In South Africa, adultery no longer carries criminal consequences - but it can still shape divorce outcomes and reputational risks. 

 

If you're facing a marriage breakdown or need legal advice on spousal rights and responsibilities, our experienced family law team is here to help.

 

Legal Disclaimer: This blog post is intended for general informational purposes only and does not constitute legal advice. The content should not be relied upon as a substitute for legal counsel. Laws may vary based on jurisdiction, and individual circumstances can significantly impact legal outcomes. Reading this article or contacting our firm through this blog does not create an attorney-client relationship.