Section 3 of the Adultery and Enticement Act 1988 creates a wrong that has no equivalent in most legal systems.
A person commits enticement when he persuades or attempts to persuade the spouse of another person to commit an act of adultery, whether or not the contemplated act of adultery is committed.
What must be shown
| Element | Detail |
|---|---|
| Persuades or attempts to persuade | Either is enough — an unsuccessful attempt is still enticement |
| The spouse of another person | “Spouse” is widely defined in section 1 |
| To commit an act of adultery | Voluntary sexual intercourse with a person other than the spouse — s 2 |
| Whether or not it is committed | The wrong is complete on the persuasion or the attempt |
The closing words — “whether or not the contemplated act of adultery is committed” — are what distinguish enticement from adultery.
Adultery requires an act: voluntary sexual intercourse. Enticement requires no act at all — only the persuasion, or an attempt at it.
So a person who tries to induce another’s spouse into an affair and fails has still committed enticement, and may be sued for compensation of up to K500 under section 13.
The purpose of the section
The Act is stated to regulate these disputes as a matter of national interest. In practice a great deal of the conflict arises from the approach itself — a person pursuing another’s wife or husband — long before, and often without, any act of adultery.
Section 3 gives the aggrieved spouse a lawful remedy at that point, in the District Court, for a capped sum, after mediation. The alternative — a private response — is what the Act exists to displace.
The lower cap reflects the lesser wrong: K500 for enticement under section 13, against K1,000 for adultery under section 12.
Section 5 — the action for enticement
A person whose spouse has been enticed may bring an action under this Act against the person who has committed the enticement.
Section 5 permits an action against the person who has committed the enticement — the outsider. It does not allow an action against the enticed spouse.
Contrast section 4(1) for adultery, which permits an action against the spouse, the other person, or both.
The distinction follows from the definitions. The spouse who yields to persuasion commits no enticement — enticement is what the persuader does. If the spouse then commits adultery, that is a separate wrong actionable under section 4.
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.
When enticement leads to adultery
Where (a) enticement is committed; (b) the enticed spouse commits an act of adultery with the person who committed the enticement; and (c) separate actions are brought in respect of the enticement and the act of adultery by the same person — the Court may hear the actions together.
In that situation, where separate actions are brought by or on behalf of the same person, the total amount of compensation in respect of all those actions shall not exceed K1,000.00 — regardless of whether or not the actions are heard together.
A complainant cannot recover K500 for the enticement and K1,000 for the adultery that followed. Section 14 fixes the total at K1,000.
That is consistent with the whole design of Part III: section 12(2) caps the total for separate actions on the same act of adultery, and section 4(2) treats all acts between the same persons before the action as one act.
The ceiling is on the claim, not on the number of defendants: section 15 requires the Court, where an order is made against more than one defendant, to specify the amount payable by each.
The same defences in section 9 apply to an enticement action — prior consent, subsequent forgiveness, or a reasonable belief that the spouse was not married — and where one is established the Court shall dismiss the action. The six-month time limit in section 7 applies equally, running from the day the enticement was committed.
Sources
- Adultery and Enticement Act 1988 — ss 1–5, 7–10, 12–15
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.