Adultery, Irretrievable Breakdown, and the End of Third-Party Liability in South African Divorce Law

South African divorce law no longer requires proof of marital fault. The decisive inquiry is whether the marriage relationship has irretrievably broken down. This principle was affirmed in Schwartz v Schwartz 1984 (4) SA 467 (A), where the court emphasised that divorce proceedings focus on the condition of the marital relationship itself rather than the moral culpability of either spouse.

This approach is reflected in the Divorce Act 70 of 1979, which governs the dissolution of civil marriages in South Africa. In terms of the Act, a court may grant a decree of divorce on two recognised grounds:

• irretrievable breakdown of the marriage relationship, or

• mental illness or continuous unconsciousness of a spouse.

In practice, the overwhelming majority of divorces proceed on the basis of irretrievable breakdown.

From Fault-Based Divorce to Irretrievable Breakdown

Prior to the enactment of the Divorce Act, South African divorce law largely followed a fault-based model. A spouse seeking a decree of divorce was required to establish matrimonial misconduct such as adultery, malicious desertion, or habitual criminality.

The introduction of irretrievable breakdown marked a deliberate legislative shift away from this framework. The intention was to avoid forcing spouses to attribute blame or prove moral wrongdoing in order to dissolve a marriage that had already failed in substance.

The focus of divorce proceedings therefore shifted from assigning responsibility for the breakdown of the marriage to determining whether the marital relationship had deteriorated to such an extent that restoration was no longer reasonably possible.

Adultery and the Historical Action Against Third Parties

Historically, South African law recognised a delictual claim allowing an innocent spouse to institute proceedings against a third party who had engaged in an adulterous relationship with their spouse.

This claim — commonly referred to as the action for adultery — was premised on the notion that the third party had wrongfully interfered with the marital relationship, causing harm to the innocent spouse’s dignity, reputation, and marital consortium.

Courts therefore permitted claims for damages against third parties alleged to have contributed to the breakdown of a marriage through adulterous conduct.

The Constitutional Court and the Abolition of the Adultery Action

The continued existence of this delictual claim was reconsidered by the Constitutional Court in DE v RH 2015 (5) SA 83 (CC).

In that decision, the Court abolished the longstanding action for adultery damages. The Court held that imposing civil liability on a third party for the breakdown of a marriage was inconsistent with constitutional values including dignity, autonomy, and freedom of association.

The Court emphasised that marriages may fail for complex and deeply personal reasons and that it would therefore be inappropriate for the law to attribute legal responsibility for the breakdown of a marriage to a third party.

The judgment reflects the broader evolution of South African family law away from fault-based remedies and toward a functional assessment of whether the marriage relationship itself has irretrievably broken down.

The Role of Adultery in Modern Divorce Proceedings

Although the action for adultery damages has been abolished, adultery has not become legally irrelevant.

Adultery may still serve as evidence that a marriage relationship has irretrievably broken down where the innocent spouse regards the conduct as incompatible with the continuation of the marriage.

However, adultery is no longer treated as an independent ground for divorce and does not give rise to civil liability against the third party involved.

In modern divorce litigation, the focus therefore shifts away from questions of moral blame and toward practical issues such as the division of matrimonial property, maintenance obligations, and arrangements concerning children.

Determining Irretrievable Breakdown

Section 4 of the Divorce Act provides that a court may grant a divorce where it is satisfied that the marriage relationship has reached a state of irretrievable breakdown and that there is no reasonable prospect of restoring a normal marital relationship between the parties.

In determining whether this threshold has been met, courts consider the totality of the evidence rather than a single incident or event.

The Act identifies certain circumstances that may serve as indicators of irretrievable breakdown, including:

• prolonged separation between spouses

• adultery that renders continuation of the marriage intolerable

• imprisonment of a spouse as a habitual criminal

These statutory examples are not exhaustive. Courts retain a broad discretion to determine whether the marital relationship has, in substance, ceased to exist.

In Klopper v Klopper 1991 (1) SA 267 (O) the court recognised that prolonged separation, the absence of marital consortium, and the practical impossibility of reconciliation may constitute compelling evidence that the marriage has broken down irretrievably.

The inquiry therefore remains fact-driven and contextual, focusing on whether the marriage can realistically be restored.

Conclusion

South African divorce law no longer seeks to allocate blame for the failure of a marriage or impose civil liability on third parties involved in personal relationships. The decisive legal inquiry is whether the marriage relationship has irretrievably broken down and whether there is any realistic prospect of restoring the marital relationship.

While adultery may serve as evidence that a marriage has broken down, it no longer gives rise to a claim against the third party involved. The dissolution of a marriage therefore remains a judicial determination grounded in the statutory framework of the Divorce Act and the factual condition of the marital relationship itself.

If you are facing these circumstances and require guidance on how to proceed, book a consultation here: https://www.lls-law.co.za/book-consultation

Disclaimer

This article is intended for general informational and educational purposes only. Legal outcomes depend on the specific facts of each matter and the applicable statutory framework. Professional advice should be obtained before acting on any information contained herein.