How costly can cheating on your spouse become? A divorce lawyer explains...

CapeTalk's Clarence Ford speaks to family and divorce lawyer Bertus Preller.

Listen below:

In South Africa, adultery is recognised as a factor contributing to the irretrievable breakdown of a marriage under the Divorce Act.

While adultery is not illegal and cannot lead to criminal prosecution, it can be a valid reason for divorce.

The law states that if one spouse commits adultery, rendering the continuation of the marriage intolerable for the other, a divorce may be granted.

People who cheat in marriages can do so physically and emotionally which can be equally hurtful and damaging to the relationship, says Preller.

Emotional cheating - also known as an 'emotional affair' can be considered as a betrayal for some, Preller explains.

"We hear that a lot as divorce lawyers, although we don't believe it, always. But in South Africa, if you look at infidelity or adultery, it's no longer what we call a delict in South African law since the Constitutional Court abolished the civil damages claim for adultery in 2015."

- Bertus Preller, Family and Divorce Lawyer

"In most cases, adultery is a symptom of an already failing marriage... but then you also do get these serial adulterers that sneak around with 10 women during a marriage."

- Bertus Preller, Family and Divorce Lawyer

Divorce cases in South Africa can typically take up to three years to conclude, says Preller.

While short-term affairs or one-off flings don’t usually justify a 'forfeiture of assets' claim, recent court rulings show that serious misconduct can significantly affect the outcome of a divorce settlement.

“In certain matters, courts have granted forfeiture of assets against a spouse guilty of substantial misconduct,” Preller explains.

In one such case, the spouse who was cheated on argued that the unfaithful partner should not be entitled to any portion of her pension fund and the court agreed.

In another instance, the court considered factors like abuse and failure to contribute to maintenance, also resulting in the cheating spouse losing access to the other party’s pension benefits.

Preller stresses that each case is unique and must be assessed on its own facts.

However, one thing is clear: infidelity or misconduct can become a costly issue, especially if the parties fail to reach a settlement out of court.

"As a divorce lawyer, I hate to see people getting divorced because of the repercussions, not only for the spouses but for the children going forward. It could be very costly because divorce litigation is extremely expensive and it takes years to conclude if you don't settle. Most of the time, after three years, you get to a point where you could've settled in the first month of when summons was issued on the same terms... but then you've spent thousands in the process on legal costs."

- Bertus Preller, Family and Divorce Lawyer

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