Part II of the Adultery and Enticement Act 1988 sets out who may sue.
A person whose spouse has committed an act of adultery may bring an action under this Act against —
(a) the spouse; or
(b) the person with whom the spouse has committed the act of adultery; or
(c) the spouse and the person referred to in paragraph (b).
A person whose spouse has been enticed may bring an action against the person who has committed the enticement.
Who is entitled to sue
The right belongs to the person whose spouse committed the act, or was enticed. Nobody else has standing in their own right — not a parent, not a clan, not the family of the aggrieved spouse.
The one qualification is section 6, under which the Court shall permit a relative to bring an action on behalf of that person, with their permission or where they are unable or incapable of acting.
That is significant. The Act deliberately keeps the claim personal, so that a dispute between two people does not become a claim by two families — which is precisely the escalation the Act was passed, as a matter of national interest, to prevent.
Section 1 defines “spouse” 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 the complainant may be a party to a statutory marriage under the Marriage Act (Chapter 280), to a customary marriage, or to a relationship with the status of a marriage.
The relationship must be subsisting. A person whose marriage has already ended has no spouse, and no action.
Section 4(1) — three choices
| Wrong | Available defendants |
|---|---|
| Adultery — s 4(1) | The spouse; the other person; or both |
| Enticement — s 5 | Only the person who committed the enticement |
Enticement is defined by section 3 as what the persuader does. The spouse who is persuaded commits no enticement.
If that spouse then commits adultery, it is a separate wrong, actionable under section 4(1)(a). Where both happened with the same outsider, section 8(2) allows the actions to be heard together, and section 14 caps the total compensation at K1,000.
Section 8(3): where an action for adultery is brought against only one of the two parties to the act, that defendant may request the Court to order that the other party be joined as a defendant — and the Court may so order whether or not that other party is available or cannot be located.
So a complainant who sues only the outsider may find their own spouse joined; and a complainant who sues only their spouse may find the outsider joined.
That is fair to the defendant, since section 15 requires the Court, where an order is made against more than one defendant, to specify the amount payable by each — while section 12(1) caps the total at K1,000 however many defendants there are.
Section 4(2) — a single act
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.
See what an act of adultery is. The rule prevents a continuing relationship generating repeated claims, and it fixes when the six-month limitation period begins to run: under section 7(2), on the day after the last of those acts.
What a complainant should know
The court is the District Court. Section 1 defines “Court” as a District Court, and section 20 provides that its orders are enforced under the District Courts Act (Chapter 40).
Mediation comes first. Section 10(1) requires the Court, before hearing an action, to endeavour to have the action settled by mediation.
The standard is civil. Section 19 — proof on the balance of probabilities.
There are defences. Section 9 — prior consent, subsequent forgiveness, or a reasonable belief that the spouse was not married. Where one is established, the Court shall dismiss the action.
The District Courts Act (Chapter 40) is not available on PacLII at the time of writing.
An action under this Act is the only route to compensation on these grounds: section 21 provides that actions or claims for compensation on the ground of adultery or enticement shall not be brought or made except in accordance with this Act. Separately, and only where the marriage was a statutory one, adultery is a ground for divorce and may support a claim for damages against the adulterer in the National Court.
Sources
- Adultery and Enticement Act 1988 — ss 1–10, 12, 14, 15, 19–21
- Matrimonial Causes Act (Chapter 282) — ss 17, 32, 33
- 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.