The ManicaPost
Tracy Mutowekuziva The law & rights
Our common law in Zimbabwe was derived from Rome and Roman Dutch Law. Whilst not all of it is written down in any statues or acts of parliament, it is equally binding. The law on adultery falls under common law, which means it has its origins in Rome.
The law stipulates that, in the event of adultery, the wronged party should sue the third party with whom the spouse was cheating with.
For the purposes of this article, l will be referring to the third party as the small house. This includes both the side men and women.
For one to successfully sue for adultery, one has to satisfy two requirements, one has to prove that there was loss of consortium and contumelia.
Consortium being loss of love and affection, which would have resulted from the spouse giving it to the other party.
Contumelia arises in those instances where the third party was being spiteful.
An example would be when the small houses was posting pictures of her and the husband wearing matching clothes.
The remedies that are available when one sues for adultery are damages.
The cheated spouse, will claim an amount of money she feels that will compensate the wrong doing done to her.
The Courts have the discretion to assess the amount obviously.
The other remedy l am told is that the cheated spouse can apply for an interdict.
That is an order for the Court to stop the small house from communicating of engaging in sexual activities with his or her spouse.
Our Courts in Zimbabwe have in many occasions awarded damages of the cheated spouses.
The moot question is/are these damages still necessary? Aren’t they archaic?
When people get married, they vow to keep each other safe and to respect each other.
They owe that to each other. They make vows in from of God and people.
When one of the two parties to the marriage break the vows, who should be held accountable?
The one who has broken the vow or the third party who has helped the adultery to happen? South African Courts have ruled that adultery damages are not constitutional this make sense to me.
Their reasoning however, is that one cannot assess marital infidelity in terms of money.
My reasoning is, the one who should be held accountable is the cheating spouse, and not the small houses.
A week does not pass without us seeing a video gone viral of a woman or a group of women bashing a small house or man beating up another man for sleeping with his wife.
Their reason is the same that is provided by the law of adultery in Zimbabwe, that the wrong doer in the adultery is the not spouse but the third party.
The world has moved on and morals have changed.
Divorce, which in earlier days was available in the event of adultery or desertion only, is now available in the event of an irretrievable breakdown of the marriage.
Guilt is no longer an issue.
There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person or to continue being married to that particular person , irrespective of the “guilt” of the latter.’
So here is my two cents the law on adultery is clear but is it really necessary /Is it not time for law reform?
The writer of this article is Tracy Mutowekuziva a women rights lawyer.
