The Sunday Mail
Slyvia Chirawu – Extra Correspondent
Recently, the issue of adultery has taken centre stage and one of the most popular religious figures in Zimbabwe, Prophet Walter Magaya, has been was accused of having an affair with a married woman.
At the time of writing it was not yet clear if summons had been issued against him, but in Nigeria and the UK a storm is brewing after Pastor Anita Oyakhilome is said to have cited adultery on the part of Pastor Chris as one of the reasons why she wants a decree of divorce.
Adultery is one of the most common reasons for divorce and the effects of adultery are felt by children. From that point of view, adultery wreaks havoc in families. Cases of men suing other men for adultery are rare, but more common are cases of women suing other women.
Though adultery is a social issue with others even stating that it’s no longer being frowned upon as it used to be in the past, it is also a legal issue.
The law defines adultery as a situation where sexual intercourse takes place between two adults and one or both are married to a third party at that time.
For instance if A is married to B under a Chapter 5:11 marriage and B goes on to have sexual intercourse with C then A can sue C for adultery damages.
The law requires that for damages to be awarded, the person who is being sued must have been aware that the person they were or are having sexual intercourse with is married to the complainant.
In other words, the person being sued can admit to having sexual intercourse but state that they were not aware of the marriage.
Adultery, legally, is much more than just having an affair: there must be sexual intimacy. The issue of marriage is central to adultery. In Zimbabwe, inasmuch as the law does not fully recognise an unregistered customary law union, it recognises that a man married under such a union can sue for adultery.
In other words, if a man pays lobola only, for purposes of adultery it is recognised as a marriage.
The situation for women who are married to a man that has more than one wife on the other hand is tricky.
Such a woman has no legal right to sue any other woman who has or is committing adultery with her customary law husband.
The reasoning is that since the man can potentially marry more than one wife, it will be foolhardy to allow the customary law wife to sue.
The man will simply pay lobola for the other woman.
For those married under Chapter 5:11, however, both women and men can sue anyone who commits adultery with their spouse.
In law, marriage is a special contract that creates what is called consortium omnis vitae. This means that when two people marry, they are expected to keep each other company, love each other, be affectionate towards each other and offer each other comfort and exclusive sexual intercourse.
The law recognises that one aspect of adultery damages is to compensate the innocent spouse for loss of consortium. The innocent spouse will basically be stating that “before this third party came between us, we were happy; we used to be intimate sexually, offer each other company and comfort. Now that this third person has come between us, this is no longer happening”.
Damages are also awarded for what is known as contumelia.
The legal definition of contumelia is intention to injure another’s feelings; therefore the manner in which the adultery is committed is crucial in an award of damages.
For instance if the third party goes out of their way to let the spouse of the person whom they are committing adultery know this can be taken as contumelia.
It’s common nowadays, especially in the era of technology for an innocent spouse to receive SMSs or WhatsApp messages with pictures describing in gory detail the affair, and the courts in such instances will grant damages for contumelia.
This very much depends on the facts of each case.
For instance, a marriage may already be an unhappy one before the third party came in and courts may decline to give damages for loss of consortium or may not award a substantial amount because the marriage was already rocky.
Similarly some adulterous relationships are done discreetly and as a result, courts may decline to award damages for contumelia.
If the innocent spouse forgives the errant partner and they reconcile, it does not mean they lose the right to sue. They can still go to court but they may not get damages for loss of consortium.
The courts will view such a situation as one where consortium has not really been lost.
In assessing damages, courts consider a number of factors, some of them are the character of the woman/man involved, the socio-economic status of the person who is suing and person who is being sued, whether the person being sued has shown any remorse and has apologised, and the need to protect innocent spouses from contracting HIV and other STIs.
Zimbabwe’s courts are disinclined towards awarding huge sums of money as adultery damages; perhaps this is a reflection of society’s attitude towards it.
The million dollar question is whether adultery damages restore a marriage, and the answer seems to be a no because the court action and damages target the third party.
A wife cannot sue her husband for adultery, a husband cannot sue his wife for adultery but they can only sue the person with whom their spouse has committed or is committing adultery.
Most women who sue for adultery damages do so not for the money but to vent their anger and frustration on the third party; while some do not want to divorce their spouse at all.
They hope that by exposing adultery, the errant spouse will mend his ways.
Perhaps it is time to look at adultery as more of a social problem that the law can do little to cure.
Parties should be encouraged to work on their marriages.
Slyvia Chirawu is a lawyer, consultant and human rights, women’s rights and gender expert. She teaches Family Law and Law of Succession. Chirawu is a Hubert Humphrey Alumnus and writes in her personal capacity.
