The final Part of the Adultery and Enticement Act 1988 makes the Act the exclusive route.
(1) Subject to subsection (2), actions or claims for compensation, or orders for compensation, on the ground of —
(a) adultery; or (b) enticement,
shall not be brought or made, as the case may be, except in accordance with this Act.
(2) Subsection (1) does not affect any action or claim for compensation that has commenced, or the enforcement of an order for compensation that has been made, before the commencement of this Act.
Why exclusivity matters
The Act limits compensation to K1,000 for adultery and K500 for enticement. If a complainant could ignore the Act and claim at large under some other head, the limits would achieve nothing.
Section 21(1) closes that door. No action or claim for compensation on the ground of adultery or enticement may be brought except in accordance with this Act — which means: in the District Court, within six months, after mediation, subject to the section 9 defences, and capped.
Note how wide the language is: it covers actions, claims and orders for compensation. A claim advanced outside any court — a demand backed by the threat of enforcement — is equally outside the Act.
At common law an aggrieved husband could sue for criminal conversation (damages against a wife’s lover) and for enticement or harbouring of a spouse — actions resting on the idea that a husband had a proprietary interest in his wife’s consortium.
Section 21 replaces them with a single statutory action available to either spouse. Sections 4 and 5 speak of a person whose spouse committed the act or was enticed — husband or wife alike — consistent with Constitution section 55 on the equality of citizens.
Section 21(2) — what survives
| Matter | Position |
|---|---|
| An action or claim commenced before the Act | Unaffected — continues under the old law |
| An order for compensation made before the Act | Enforceable as before |
| Anything begun after commencement | Must be in accordance with this Act |
Section 21(2) is an ordinary transitional saving: rights already being pursued, and orders already made, are not swept away. It has little practical significance now, decades after commencement.
Section 22 — the regulations repealed
Section 2 of the Native Regulation (Chapter 316) and Section 2 of the Native Administration Regulation (Chapter 315) are repealed.
Those two provisions had governed adultery disputes under the pre-Independence administration, applying only to some of the population — a distinction inconsistent with Constitution section 55, which confers a right to equality of citizens.
The 1988 Act replaces them with a scheme that applies to everyone, and that defines “spouse” in section 1 to include a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of a marriage — so it reaches statutory marriages, customary marriages, and relationships with the status of a marriage alike.
What section 21 does not touch
Divorce. Adultery remains a ground for dissolution under section 17(a) of the Matrimonial Causes Act (Chapter 282). Section 21 bars claims for compensation, not petitions for a decree.
Damages in a matrimonial cause. Section 32 of that Act allows the National Court to award damages against a co-respondent, who under section 33(1) must be made a party. Those are damages in a matrimonial cause, in a different court and under a different Act.
Customary compensation freely agreed. Section 21 prohibits actions, claims and orders. A settlement reached voluntarily — including through the section 10 mediation the Court must attempt — is what the Act encourages, and section 16(c) requires a court to take into account whether payment of compensation according to custom has been made.
It takes a dispute that was previously handled by whatever route the parties could find, and channels it into a single, cheap, local, capped and mediation-first procedure in the District Court — which is what Parliament meant by regulating these disputes as a matter of national interest.
Sources
- Adultery and Enticement Act 1988 — ss 1–22
- Matrimonial Causes Act (Chapter 282) — ss 17, 32, 33
- Constitution — s 55
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.