Part III of the Adultery and Enticement Act 1988 fixes what a successful complainant may recover.
Where (a) mediation under section 10 has failed; (b) the Court is satisfied on the hearing that the act of adultery or enticement was committed; and (c) a defence under section 9 has not been established — the Court may make an order for compensation to the complainant against all or any of the defendants.
Sections 12 to 14
| Claim | Maximum | Section |
|---|---|---|
| An act of adultery | K1,000 | 12(1) |
| Separate actions on the same act of adultery, by or on behalf of the same person | K1,000 in total | 12(2) |
| Enticement — regardless of the number of defendants | K500 | 13 |
| Enticement and adultery with the same person, by or on behalf of the same person | K1,000 in total, whether or not heard together | 14 |
(1) An order for compensation in an action in respect of an act of adultery shall be for an amount not exceeding K1,000.00.
(2) Where separate actions are brought by the same person or on behalf of the same person in respect of the same act of adultery, the total amount of compensation shall not exceed K1,000.00.
13. An order for compensation in an action for enticement shall be for an amount not exceeding K500.00, regardless of whether the order is made in respect of more than one defendant.
14. Where an enticed spouse commits an act of adultery with the person who committed the enticement, and separate actions are brought by or on behalf of the same person in respect of both, the total compensation shall not exceed K1,000.00 — regardless of whether or not the actions are heard together.
The caps are the point of the Act
The Act is stated to regulate these disputes as a matter of national interest. The mischief was compensation demands that escalated without limit, and the conflict that followed when they could not be met.
A fixed statutory ceiling removes the negotiation over quantum that drove the escalation. Whatever is demanded outside court, what a court will order is K1,000 at most.
Every route around the cap is closed:
- Section 4(2) — all acts between the same persons before the action are one act;
- Section 12(2) — separate actions on the same act share one ceiling;
- Section 13 — the enticement cap applies regardless of the number of defendants;
- Section 14 — enticement plus adultery with the same person share one ceiling of K1,000;
- Section 4(1) — only the aggrieved spouse may sue, and under section 6 a relative may sue only on behalf of that person, so the same caps apply;
- Section 21 — no claim for compensation on these grounds may be brought except in accordance with this Act.
Sections 12 and 13 say “not exceeding”. They set maximums, not standard awards.
What is actually ordered is governed by section 16, under which the Court shall take into account the defendant’s earning capacity, any financial hardship likely to follow, and any other relevant matters — including whether payment of compensation according to custom has already been made.
Note also that section 11 says the Court may make an order. Even where all three conditions are met, an award is discretionary.
Section 15 — dividing it between defendants
Where, in an action or actions heard together, an order for compensation is made in respect of more than one defendant, the Court shall specify in the order the amount payable by each defendant.
Section 15 requires the order to state each defendant’s share. A defendant is liable for the amount specified against them, not for the whole.
That matters because section 4(1)(c) allows an action against both the spouse and the other party, and section 8(3) allows a sole defendant to request that the other party be joined — even where that other party cannot be located.
The interaction is straightforward: joinder does not increase the complainant’s recovery, because section 12(1) caps the total at K1,000 however many defendants there are. What it does is divide the burden, with section 15 fixing each share.
What follows an order
Section 17 — compensation may be ordered in cash, in goods specified in the order, or partly in each; and at one time or by instalments. Alcoholic liquor of any kind shall not be regarded as goods.
Section 18 — a person who fails to comply with an order for compensation is guilty of an offence, punishable by imprisonment for a term not exceeding six months.
Section 20 — an order shall be enforced under the District Courts Act (Chapter 40).
The District Courts Act (Chapter 40) is not available on PacLII at the time of writing.
Compensation under this Act is separate from anything available in a divorce. Where the marriage was a statutory one, section 32 of the Matrimonial Causes Act (Chapter 282) allows the National Court to award damages against a co-respondent in a matrimonial cause — a different jurisdiction, a different remedy, and no statutory cap.
Sources
- Adultery and Enticement Act 1988 — ss 4, 6, 8–21
- Matrimonial Causes Act (Chapter 282) — ss 32, 33
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.