Prior to this case, Blagden CJ dissolved the marriage on the grounds of adultery of the petitioner’s wife with the co- respondent, a Mr. Joubert. The divorce petition included a prayer for legal costs (which the court granted) and another for £500 damages against the co-respondent in relation to the adultery (which was adjourned, hence this case).
How much should the court award as damages occasioned by the adultery of the co-respondent and what metrics should it consider in awarding such damages?
First and foremost, the court held that damages for adultery are compensatory and not punitive. What this means is that, unlike the objects of criminal law, the objective here is not to punish the offender but rather to comfort the petitioner for injury to feelings. Secondly, these damages fall under two distinct categories: (i). damages to the actual value of the wife (ii.) damages to injury to feelings of the husband. Of course, both of these are in relation to the adultery. As to the first category, the actual value of the wife can be further categorized into two things: (a) pecuniary loss, which could be loss of the wife’s fortune, her income or her assistance in the husband’s business among other things. Then (b) consortial loss, which is loss of aspects that make her a good wife such as affection, companionship and faithfulness. On the aspect of pecuniary loss, the court found that the husband’s evidence was that although his wife was working and drawing a salary, she had not been paying any of it over to him. Therefore, the pecuniary loss was negligible. His consortial loss also was not high owing to the fact that by 1965-1966, their marriage was no longer a happy one. However, the court held that injury to his feelings was of more substance because the co-respondent was his friend. In consequence, an award of £300 as damages was awarded to the husband.
The hallmarks of this case are by far the principles elucidated in awarding damages. It’s also worthy of note that not knowing that someone is married is not a mitigating factor in awarding damages of this nature; Blagden CJ said that, “any man contemplating extra-marital sexual intercourse would be put upon inquiry as to the marital status of the other party to the intercourse.”
Furthermore, another consideration in awarding damages is if the husband and wife were living happily together, the co-respondent’s actions will have caused serious damage. However, if the relationship between them was strained or they were living apart, much less damage, or possibly none at all, will have been caused.
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