Section 2 of the Adultery and Enticement Act 1988 gives a short and precise definition.
An act of adultery is committed where a spouse engages in voluntary sexual intercourse with a person other than his spouse.
Three elements
| Element | What it requires |
|---|---|
| A spouse | At least one party must be a spouse as defined in section 1 |
| Voluntary | The intercourse must be by choice — not procured by force or without consent |
| Sexual intercourse | With a person other than his spouse |
A person who is raped has not committed an act of adultery. The intercourse must be voluntary, and that is an element of the definition, not merely a defence.
The same principle appears in the divorce law: section 17(a) of the Matrimonial Causes Act (Chapter 282) requires adultery, and section 85(1)(a) of that Act treats a conviction for rape as evidence that the offender committed adultery with the person on whom the offence was committed — adultery by the offender, not by the victim.
Section 1 provides that “spouse” includes 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 the Act reaches parties to a statutory marriage under the Marriage Act (Chapter 280), to a customary marriage, and to a relationship that has the status of a marriage without being one in form.
The word “subsisting” matters: the relationship must be current. A person whose marriage has ended is no longer a spouse, and intercourse afterwards is not an act of adultery under this Act.
Note also that the definition of “spouse” catches both parties to the act where each is married to someone else — each has committed an act of adultery in relation to their own spouse.
Section 4(2) — all acts count as one
For the purposes of an action under subsection (1), all acts of adultery committed between the same persons before the commencement of the action shall be regarded as one act of adultery.
Without section 4(2), a relationship lasting months could generate a separate claim for each occasion — and each claim could attract compensation, defeating the K1,000 ceiling in section 12.
The subsection prevents that. A continuing relationship between the same two people is one act of adultery, producing one claim.
Section 12(2) reinforces it: where separate actions are brought by or on behalf of the same person in respect of the same act of adultery, the total compensation shall not exceed K1,000.
Note the limits of the rule. It applies to acts between the same persons, and only to those committed before the commencement of the action. Adultery with a different person is a different act; and acts committed after an action begins are not swept into it.
The effect on the limitation period
Where by virtue of section 4(2) acts of adultery are regarded as one act, the six-month period in section 7(1) commences to run on the day next following the day when the last of those acts was committed.
If time ran from the first act, a long-running relationship could become unactionable before the innocent spouse even learned of it.
Section 7(2) starts the clock at the last act. See the time limit for an adultery action, including the extension the Court may grant under section 7(3) where there is reasonable cause for delay.
The consequences of an act of adultery
A person whose spouse has committed an act of adultery may bring an action against — (a) the spouse; or (b) the person with whom the spouse committed the act; or (c) both.
1. Compensation under this Act — a civil claim in the District Court, capped at K1,000, proved on the balance of probabilities (section 19), and preceded by compulsory mediation.
2. A ground for divorce — section 17(a) of the Matrimonial Causes Act (Chapter 282), in the National Court, and only where the marriage was a statutory one, since section 4 of that Act excludes customary marriages.
3. Damages against the adulterer in a matrimonial cause — section 32 of that Act, where the person is made a party under section 33(1).
A petitioner’s own adultery is separately a discretionary bar under section 29(a) of that Act, disclosed in a sealed discretion statement.
The defences to an action under this Act — prior consent, subsequent forgiveness, and a reasonable belief that the spouse was not married — are in section 9.
Sources
- Adultery and Enticement Act 1988 — ss 1, 2, 4, 7, 9, 12, 19
- Matrimonial Causes Act (Chapter 282) — ss 4, 17, 29, 32, 33, 85
- Marriage Act (Chapter 280) — s 3
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.