My Vows My Responsibility

The issue of adultery damages usually opens up unruly debates which are never conclusive. Married women in most instances pull out daggers protecting their marriages while men are not amused by such stances when their wives sue the ‘other woman’. What always baffles me is that when a man who has been adamant that a woman should not sue a girlfriend of their husband is asked if he should sue for adultery damages from a man who has an affair with his wife they are incensed.
Adultery is when two people have an intimate relationship and one or both of them are married to someone else at that time. Adultery damages are awarded to compensate the injured party. At law they are compensated for two things: Contumelia and lack of consortium. Contumelia is about hurt, pain and indignity that is as a result of the adultery whilst consortium refers to deprivation of things such as sex, loss of love and affection. From the aforegoing adultery damages seem to be awarded for the wayward behaviour of a partner who brings another into their marriage. However adultery damages do not apply to everyone who stays with a ‘husband’. These apply to people who are in a civil marriage popularly known as Chapter 5:11 previously known as Chapter 37, In this kind of a marriage both the man and the woman can sue for adultery damages. In all other marriages that we call marriages only the man has the prerogative to sue for adultery damages because all these regimes are potentially polygamous.
In essence the law on adultery damages makes the courts the gatekeeper to marriages as they play a pivotal role in preserving the marriage institution by punishing those that are promiscuous and intend to cause havoc within the institution. Those that ‘steal’ married persons from their partners are duly punished and this seems to be in tandem with the provision of the Zimbabwe Constitution of 2013 which in section 25 calls upon the state to protect and foster the family institution.
This begs the question who should uphold the sanctity of a marriage? It is important to reemphasise at this juncture that only the third party is sued for adultery damages. The ‘intruder’ is punished by law for knowingly invading and destroying a successful marriage. Were it not for the intruder’s actions the marriage would have been perfect. Who should adhere to the terms of a marriage contract? Is it society? Is it the two parties to the contract like in any other contract? In all fairness a marriage is a contract between 2 parties who commit to love each other exclusively. Suing a third party for the breakdown of a marriage shifts the responsibility from the cheating spouse who is guilty of failing to adhere to the terms of a marriage contract which he willy nilly signed. An analogy that quickly comes to mind would be if one fails to pay their rentals because they have not been paid at their workplace can the landlord sue the employer? They cannot simply because their tenant’s employer was never a part to the agreement of lease. It then boggles one’s mind how a person who was never party to a marriage contract can be sued for a contract she did not agree to.
Adultery damages seem to suggest that a husband or wife who is very sound in the mind could not prevent themselves from being ‘stolen’ as it were. When there is infidelity there is no doubt that some violation has been committed. The bone of contention is who is punishable for the violation. The most logical conclusion would be that the person who has to be liable is the person who knowing of the contract that they have tied themselves to- a contract which disallows them from engaging in an intimate relationship with anyone else ‘till death separates’ them should be punished for breach of contract. The adultery damages currently shifts blame to a third party for ‘leading astray’ a committed person who had no mens rea to be infedile.
It is important to reflect on the vows that married people make to each other when they are getting married. When people get married they promise each other eternal love. They say, ‘I XXXX take you XXXX to be my lawfully wedded wife/husband. To have and to hold, for richer or poorer, in sickness and in health, in good times and in bad times Till Death Do Us Part. I choose you , forsaking all others…’ When one party fails to keep their vows they should be liable because they have violated the contract they swore by. Why is the third person always asked to single handedly pay for the atonement at the exemption of their accomplice? Is it not that the most guilty person is the one who walked away their marriage and brought in a third party.
Society seems to be in a quagmire. When a man has married and he has another girlfriend in most instances his family approves of it. On the other hand the same society will bash the girlfriend for being a home wrecker. Looking at single women they find themselves stuck in between a hard place and a rock. They live in a society that asks women to be attached to a man and belong to some man. There is so much pressure for single women of age to get married and yet the national statistics clearly reflect that there is a lesser percentage of men. Where do they get single men to get married to? Another twist to this is culturally polygamy is acceptable as a way of life for most men. When you hear people talk about men that have multiple wives, they are referred to as, ‘Bulls’, showing that they are strong and ‘real’ men. More so the phenomenon of the so called, ‘small houses’ seem to have been normalised and to some extent acceptable.

There is no doubt that a partner who has made vows of commitment to their partner and is living true to their word will be deeply hurt when their partner violates their agreement. The issue is so how does this innocent party get compensated? If an innocent party finds the adultery irreconcilable with a continued marriage relationship they have an option of divorce. The Marriage Act sets out adultery as one of the grounds for divorce. Adultery damages can never restore a failing marriage. It then seems melodramatic to ask a third person to pay for adultery damages and yet the guilty party is left unscathed. I would in my humble opinion say that shifting the blame to a third party absolves the adulterous partner of any responsibility and undermines their agency in this act. The adulterous partner is treated like a child or a person with a mental disability who has no capacity to make sound informed decisions. The assumption is were it not for this third party the adulterous partner would not have violated their marriage vows. This in my opinion is far fetched. Another way of looking at it is that partners in a marriage become each other’s property which should not be defended by law. How can human beings be denigrated to property?
A third party to a marriage should be absolved from any responsibility in the breakdown of a marriage because she never agreed to the terms of the married couple’s marriage. The restrictions placed on those that are married were never at any point placed on this third party. A marriage by its nature requires the married partners to behave in a certain way and not the whole world which is why in the vows there is no obligation that is placed on the whole of society. Honestly if married people have to heavily rely on the law providing for adultery damages to keep their marriage intact and scare away intruders then that is an appalling marriage because there is no trust in the love that these two people have for each other to keep them together. The threat for adultery damages can never keep an otherwise shaky marriage intact and believing that adultery damages can act as a deterrent for people to pursue adulterous relationships is stretching it too far.

The act of suing for adultery damages is a grave attempt to shift the blame for the breakdown of a marriage to a third party who is in no way a party to the marriage. The third party is blamed but the blameworthy spouse is unpunished and nothing can stop them from doing it again because the root cause of their infidelity was never addressed and they were never punished for their misconduct.
In conclusion adultery damages will in no way help in preserving the marriage institution because the guilty party will not reform as they are not punished for their acts. A marriage which in all fairness is intact can never be broken down by a third party so the law on adultery damages is archaic and finds no place in today’s society. Parties to a marriage should bear the consequences of their failure to adhere to the set out terms of their marriage without shifting the blame for the failure of their marriage to a third party.
N.B The views contained in this piece are my sole thoughts and are in no way attached to the organisations I work for!!!