Venter v Venter and Anor [1966] ZMHC 16 (27 June 1966)

VENTER v VENTER AND JOUBERT (1966) ZR 60 (HC) HIGH COURT BLAGDEN CJ 27th JUNE 1966 Flynote and Headnote [1] Family law - Divorce - Adultery damages. Awards of damages for adultery are rare but not obsolescent. [2] Family law - Divorce - Adultery damages - Proof on default. Petitioner in divorce proceedings must prove damages for adultery though respondent and co - respondent do not defend. [3] Evidence - Divorce - Adultery damages. See [2] above. [4] Family law - Divorce - Adultery damages. Principles regulating claim for adultery damages are governed by old common law action for criminal conversation. [5] Family law - Divorce - Adultery damages. Damages for adultery are not punitive but compensatory based on the loss of the actual value of the wife and injuries to the husband's feelings. [6] Family law - Divorce - Adultery damages. The court will consider a number of factors in assessing the amount of damages for adultery, but these factors must be supported by evidence. [7] Evidence - Divorce - Adultery damages. See [6] above. [8] Family law - Divorce - Adultery damages - Bars to recovery. Connivance, collusion or condonation on part of husband will operate as a complete bar to recovery of damages. [9] Family law - Divorce - Adultery damages - Bars to recovery. The co - respondent's ignorance of the wife's marital status is not a bar to recovery of damages, but it is relevant in determining the value of the wife. Cases cited: (1) Earl v Earl [1959] CLY 957. (2) Butterworth v Butterworth & Engelfeld [1920] p.126. (3) James v Biddington (1834) 6 C. & P. 589. 1966 ZR p61 BLAGDEN CJ Statutes and rules construed: Matrimonial Causes Act, 1857, ss. 59, 33. Rules of the Supreme Court in England, order 18, rule 13 (4). Cobbett - Tribe, for the petitioner No appearance for the respondents Judgment Blagden CJ: On the 27th June, 1966, I granted a decree nisi in this case to the husband petitioner on the grounds of the adultery of his wife with the co - respondent, one Pieter Jacobus Joubert. The petition included a prayer for costs and £500 damages against the co - respondent. I made the order for costs but adjourned my decision as to damages. [1] Awards of damages for adultery are comparatively rare in this country and there are often good reasons why claims should not be preferred. Nevertheless, they cannot be regarded as obsolescent - see Earl v Earl [1]. In the present case, neither the wife nor the co - respondent entered an appearance, and the petition accordingly was undefended. [2] [3] That did not mean, however, that the husband was entitled to an award of the damages he claimed in default of the co - respondent's appearance. He still had to prove his damages, as damages are always in issue - see R S. C. Order 18, rule 13 (4) and the notes thereon in 1966 A. P., p. 401 under the heading 'Damages deemed to be in Issue'; see also Mayne and McGregor on Damages, 12th ed., para. 986, where the learned authors say: ' Even if the defendant fails to deny the allegations of damage or suffers default, the plaintiff must still prove his loss.' The claim for damages for adultery is derived from the old action for the tort of criminal conversation. This action was abolished by the Matrimonial Causes Act, 1857. Section 59 and s. 33 of that Act provided for the present procedure (see now s. 41 of the Matrimonial Causes Act, 1965) whereby a claim for damages for adultery should be made by petition in the divorce court either with or without a petition for the dissolution of the marriage or for judicial separation. [4] But the principles regulating the present claim for damages are the same as those which governed the old Common Law action for criminal conversation. The locus classicus on the subject of damages for adultery is the case of Butterworth v Butterworth and Engelfield [2], where McCardie, J, dealing with some six divorce actions together in which damages were claimed, made an exhaustive review of the subject. His judgment is reviewed in Rayden on Divorce, 9th ed., at 643 - 646, and in Mayne & McGregor on Damages, 12th ed., para. 917 - 922, and it may be of assistance if I attempt to summarise the principles which emerge and their mode of application. [5] It must be appreciated from the outset that damages for adultery are compensatory and not punitive. It follows that exemplary damages can never be awarded. As long ago as 1834, Alderson, B., in James v Biddington [3] - an action for damages for 1966 ZR p62 BLAGDEN CJ criminal conversation - said (at 590): ' A plaintiff is entitled to so much damages as a jury think is compensation for the injury he has sustained. .' The damages which may be awarded fall under two main heads: (a) damages for the actual value of the wife who, by reason of the adulterous association is lost to her husband; (b) damages for the injury to the husband's feelings, to his marital honour and to his family life resulting from the adultery. Under the first of these two heads - the actual value of the wife - we can recognise two sub­ heads, viz: damages for: (a) pecuniary loss; and (b) consortial loss. Examples of pecuniary loss would be the loss of the wife's fortune or her income; the loss of her assistance in the husband's business; and the loss of her value as a housekeeper to the husband. Consortial loss connotes the loss of those qualities in the wife which constitute her a good wife and mother, such as her affection, her companionship and her fidelity. [6] [7] It will be apparent from the foregoing that, except perhaps as regards pecuniary loss, it is impossible to make anything approaching a precise mathematical assessment of damages since we are concerned with such imprecise matters as injuries to feelings, loss of consortial qualities, and the like. Butterworth's case provides considerable guidance in regard to what may be taken into account in assessing damages in respect of these more imprecise matters. Here again, we can extract two main considerations, which can conveniently be put in the form of questions, thus: (a) What is it that the adulterer has destroyed or damaged, and what is its worth? (b) By what methods and in what circumstances was the adulterous association brought about? To answer the first of these questions the Court must examine the evidence to see how the husband and wife were living before the wife's association with the co - respondent became a serious factor. If husband and wife were living happily together, the co - respondent's actions will have caused serious damage. If relationships between husband and wife were already strained or they were living apart, much less damage, or possibly none at all, will have been caused. The answer to the second of these questions - how was the adulterous association brought about - will be relevant both in estimating consortial loss and injury to feelings. The general conduct and character of all three parties will be most material: of the husband, because it may show that by unkindness or indifference he has contributed to the break - up of his marriage - factors which would 1966 ZR p63 BLAGDEN CJ operate in mitigation of the damages; of the wife, because it will act as a direct pointer to her consortial value; and of the co - respondent; because the nature and extent of the part he plays in the wife's downfall will not only give some indication of her worth as a wife but will also directly affect the injury suffered by the husband to his feelings, etc. [8] As regards the conduct of the husband it is perhaps scarcely necessary to mention that if his conduct amounted to connivance, collusion or condonation, it would act as a complete bar to his recovery of damages for any adultery affected thereby. [9] It used to be thought that the co - respondent's ignorance of the wife's marital status might be a bar to the recovery of damages against him. But this is not so. Any man contemplating extra - marital sexual intercourse would be put upon inquiry as to the marital status of the other party to the intercourse. But if he were genuinely ignorant that she was married this would be almost relevant circumstance to take into account, for it would at least be an indication that the wife was passing herself off as unmarried, and thus of little value as a wife. Bearing all these considerations in mind I now turn to the facts of this case. The only evidence I have is that of the petitioner husband himself and the affidavits of the wife and the co - respondent. The parties were married in 1961 and they have no children. The first two years of their married life were happy but after that, according to the husband, the marriage ceased to be happy, mainly because he wanted to have children and his wife did not. The husband described the co - respondent as 'a good friend of the family'. He used to see him, he said, something like five times a week. As regards the wife, the husband said he trusted her. Her affair with the co - respondent was the only time he had had any trouble with her of this sort. There was really no cause for unhappiness between them except this business of her not wanting to have any children. In January, 1966, the co - respondent's visits to the matrimonial home became more frequent and the husband's suspicions were aroused. He spoke to his wife about it. At first she was not very responsive but later that same month she told him that she loved the co - respondent, and when the co - respondent saw the husband he told him that he was in love with her. On the 28th January, 1966, the wife left the husband and went to Livingstone. The husband visited her there and she told him that she did not want to live with him any more; she wanted to live with the co - respondent. I have no reason to doubt the truth of the husband's evidence in these matters. The affidavits of the wife and the co - respondent do not take the matter much further. It appears that she first met the co - respondent in August 1965; that they met frequently in company after that time; and that by January 1966 they were in love with each other although they had not committed adultery. On the 1st February, 1966, they left Lusaka to go to Livingstone and spent the night in a double room at the Choma Hotel on the way. 1966 ZR p64 BLAGDEN CJ As regards actual pecuniary loss occasioned by the loss of the wife, the husband's evidence was to the effect that although she was working and drawing a salary she had not been paying any of it over to him. She did use some of it in the purchase of groceries. As a result of her departure the husband had not had to employ any extra staff. From the foregoing I assess the husband's actual pecuniary loss as negligible and his consortial loss as not very high, in as much as the marriage, by 1965/66, was no longer a happy one. The injury suffered to his feelings by the conduct of the co - respondent, who was a friend of his, I would assess as being of rather more substance. In the result I award a figure of £300 as damages to the husband petitioner against the co - respondent. Damages awarded to petitioner