The short answer is no. Adultery is not a standalone ground for divorce in South Africa. Since the Divorce Act 70 of 1979 came into force, South African divorce law has been fault-neutral, and a court can dissolve a marriage on only one substantive ground: the irretrievable breakdown of the marriage relationship.
Adultery does still matter, but it matters as evidence. Section 4(2) of the Divorce Act lists a small number of facts a court may accept as proof that a marriage has irretrievably broken down, and adultery by one spouse is one of them. It is a pathway to proving breakdown, not an independent cause of action that ends the marriage on its own.
This article explains how adultery fits into South African divorce law, what it can and cannot affect, and the delictual claim that was abolished by the High Court in 2014. It is written for general information and is not a substitute for advice from a family law attorney on the facts of a specific matter.
The Sole Ground for Divorce in South Africa
Section 4(1) of the Divorce Act 70 of 1979 provides that a court may grant a decree of divorce on the ground that the marriage relationship between the parties has irretrievably broken down. This is the only substantive ground recognised by the Act for an ordinary contested or uncontested divorce based on breakdown.
The Act does preserve two other, narrow grounds in section 5: the incurable mental illness or the continuous unconsciousness of one spouse. These are exceptional, require extensive medical evidence and the involvement of the curator, and are unrelated to marital fault. For the overwhelming majority of plaintiffs, the route is section 4 and the question is whether the marriage has reached the point of no return.
How Section 4(2) Treats Adultery
Section 4(2) sets out the facts a court may accept as evidence that the marriage has irretrievably broken down. Adultery is expressly listed, alongside the other spouses not having lived together as husband and wife for a continuous period, the defendant having deserted the plaintiff, and the defendant having abused the plaintiff in a way that makes continued cohabitation unsafe.
The court is not compelled to grant a divorce simply because adultery is alleged. A court may still refuse the decree if it is not satisfied that the marriage has genuinely broken down beyond reconciliation, or if the plaintiff has condoned the conduct, for example by voluntarily resuming the marital relationship after becoming aware of the adultery.
- Adultery is evidence of breakdown under section 4(2), not a separate ground in itself.
- The plaintiff must still satisfy the court that the marriage relationship has irretrievably broken down.
- Condonation, connivance, or collusion can be raised in answer to a divorce based on adultery.
- The court may postpone proceedings to allow an attempt at reconciliation where there is a reasonable prospect of it succeeding.
Does Adultery Affect the Division of Assets?
South African divorce law is fault-neutral when it comes to the patrimonial consequences of divorce. The marital property regime the parties chose, whether in community of property, out of community with accrual, or out of community without accrual, governs how the estate is divided. Adultery does not, by itself, change the math.
A court has no general discretion to redistribute assets as punishment for misconduct. Where the marriage is in community of property, the joint estate is divided equally. Where the accrual system applies, the accrual is calculated and shared in accordance with the antenuptial contract. Adultery becomes relevant only where it has a direct financial consequence, such as dissipation of joint assets on a third party, which can be dealt with under the ordinary rules of the regime.
Adultery and Spousal Maintenance
Section 7 of the Divorce Act governs spousal maintenance, and section 7(2) sets out the factors a court must consider. The list is financial and needs-based: the respective means and earning capacities of the parties, their ages, the duration of the marriage, the standard of living, and any impairment of the ability to earn caused by the marriage.
Fault, including adultery, is not listed as a factor under section 7(2). The Constitutional Court confirmed in PA v CB 2020 that misconduct is not a relevant consideration when a court decides whether to award, refuse, or limit spousal maintenance. Maintenance is about need and capacity, not about punishing the unfaithful spouse.
Adultery and Child Custody
Adultery has no automatic bearing on care and contact. The Children’s Act 38 of 2005 and section 6 of the Divorce Act require the court to treat the best interests of the child as paramount. A parent’s romantic relationship with a third party is relevant only insofar as it actually affects the welfare of the child.
A court will look at the practical realities: whether the relationship exposes the child to harm, disrupts stability, or interferes with parenting. The fact of adultery itself, isolated from any concrete effect on the child, is not a reason to deny a parent care or contact.
The Abolished Delictual Claim Against a Third Party
Until 2014, a wronged spouse could sue the third party to the adultery for damages under the actio iniuriarum, on the basis that the third party had intentionally infringed the spouse’s personality rights of honour and consortium. The claim had two limbs: affectionis society (loss of affection and society) and contubernium (loss of the marital bedroom).
In RH v DE 2014, the Gauteng Division of the High Court held that this delictual action no longer forms part of South African law. The court found that the action was inconsistent with the constitutional values of dignity, privacy, and equality, and that it rested on outdated assumptions that treated a spouse and a third party as if one had stolen the other. There is therefore no longer a civil claim for damages against a third party for adultery.
What Adultery Can Still Be Used For
Although adultery no longer founds a damages claim and is not itself a ground for divorce, it remains legally relevant in a narrow set of circumstances within the divorce itself:
- As evidence under section 4(2) that the marriage has irretrievably broken down.
- Where marital assets were dissipated on the affair, in accounting for the estate under the parties’ property regime.
- In limited costs decisions, where conduct has a bearing on the costs order a court considers just.
- Where it forms part of a pattern of conduct relevant to the welfare of a child, in care and contact proceedings.
Outside these narrow uses, South African law treats adultery as a private matter between spouses rather than as a public wrong that the law punishes through the divorce process.
Authoritative Sources
- The full text of the Divorce Act 70 of 1979 on gov.za.
- Department of Justice and Constitutional Development at justice.gov.za for legislation and policy.
- Reported judgments, including RH v DE 2014 and PA v CB 2020, on SAFLII.
- The Children’s Act 38 of 2005 on gov.za for the best-interests standard.
Frequently Asked Questions
Is adultery grounds for divorce in South Africa?
No. Adultery is not a standalone ground for divorce. The sole ground is the irretrievable breakdown of the marriage under section 4(1) of the Divorce Act 70 of 1979. Adultery is listed in section 4(2) as one of the facts a court may accept as evidence that the marriage has broken down.
Can I sue the third party for adultery in South Africa?
No. The delictual claim for damages against a third party for adultery was abolished by the Gauteng Division of the High Court in RH v DE 2014, which held the action inconsistent with constitutional values of dignity, privacy, and equality.
Does adultery affect the division of property in a divorce?
Generally no. South African divorce law is fault-neutral, and the marital property regime governs the division of assets. Adultery is relevant only where it has a direct financial consequence, such as the dissipation of joint assets on a third party.
Will adultery affect child custody?
Not on its own. The Children’s Act 38 of 2005 and section 6 of the Divorce Act make the best interests of the child paramount, and a parent’s relationship with a third party is relevant only insofar as it actually affects the child’s welfare.
Does adultery affect spousal maintenance?
No. Section 7(2) of the Divorce Act sets out financial and needs-based factors for maintenance, and fault is not one of them, as the Constitutional Court confirmed in PA v CB 2020.
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Disclaimer. This article is provided for general information only and is not legal advice. Divorce, maintenance, care and contact, and the division of property all depend on the specific facts of a matter and on legislation and case law that change over time. Otrebski Attorneys is a 100% women-led, Level 4 B-BBEE law firm with a single Sandton office and a Family Law department led by Director Nastasja Otrebski. For advice on a particular matter, please consult a qualified attorney.