By Farayi Machamire
Zimbabwean courts are getting inundated with lawsuits of estranged wives suing what they have termed “scheming seductresses” for stealing their men.
More and more wives are demanding hefty financial damages from “small houses” for alienation of affection. In most of the cases, the wives are accusing the “home wreckers” of getting into affairs with their husbands at a time they are aware that the spouse was married.
In most instances, the wives claim their relationship with hubby was strong and healthy at the time of the affair, so the divorce was therefore the direct result of the adultery.
Several women, including Vice President Kembo Mohadi’s spouse, are asking judges to order the small houses who destroyed their marriage to pay damages based on loss of consortium, marital affection and fellowship, mental anguish, humiliation, injury to health, and or the loss of support.
In all these cases, the small houses have vehemently rejected liability.
The argument is that they committed no crime when the husband approached them.
There is a debate about abolishing these types of “heart balm’’ lawsuits allowing wives to sue “home wreckers”
Harare lawyer Arthur Gurira believes while adultery threatens the core of family life and the stability of the institution of marriage, legal provisions on adultery have undergone substantial changes.
“A marriage is a contract between two people. This law seeks to punish a third party who has no contractual obligations with any of these parties, it’s unfair to this party. Why can’t the aggrieved spouse sue their husband or wife?” Gurira asked rhetorically.
Throughout much of the world, criminal punishments for adultery range from fines to jail time to corporal punishment.
Civil penalties may include loss of property, money, and custody of one’s children.
Women rights lawyer Tracy Mutowekuziva said the world has moved on and morals have changed.
“When one of the two parties to the marriage breaks the vows, who should be held accountable? The one who has broken the vow or the third party who has helped the adultery to happen?
“South African Courts have ruled that adultery damages are not constitutional, this makes sense to me. Their reasoning, however, is that one cannot assess marital infidelity in terms of money.
“My reasoning is, the one who should be held accountable is the cheating spouse, and not the small house,” she said.
Prominent Harare lawyer Chris Mhike believes it’s a double-edged sword.
“Whether the law on adultery damages should still have a place in Zimbabwean law is more of a moral than it is a legal question. This issue profoundly illustrates the relationship between law and morality.
“In most cases, laws were derived from moral principles, and both the law and morality standardise acceptable or permissible conduct in society.
“The history of adultery damages is naturally linked to society’s historical abhorrence to unfaithfulness in marriages.
“Every member of society was, at least in history, expected to respect the institution of marriage,” Mhike told the Daily News on Sunday.
He said attitudes towards marriage in many modern societies have shifted, hence the invalidation of adultery damages in their societies.
“The South African excuse to the effect that one cannot assess marital infidelity in terms of money obviously still needs further discussion,” he said.
“In many cases, good laws serve to galvanise the moral conscience of the people, and to create and maintain such conditions as may encourage the growth of prevailing morality,” he added.
“The lawmaker today therefore needs to find a formula or method of assessing the current moral standards of modern Zimbabweans before determining how local family law pertaining to adultery should be re-constructed or refined so as to synchronise the law with contemporary societal standards and aspirations.”
For one to successfully sue for adultery, one has to satisfy two requirements, one has to prove that there was loss of consortium and contumelia.
Consortium being loss of love and affection, which would have resulted from the spouse giving it to the other party.
Contumelia arises in those instances where the third party was being spiteful.
Among the many cases before the courts claiming damages is Harare businesswoman Rudo Boka who is demanding $100 000 in “moral damages” from her husband’s “lover” for denying her and showing off that she was enjoying the comfort, love and services of her husband.
In summons filed with the High Court last month, Boka insists Lorrain Chitereka, a finance and administration manager with a beverages company had been living “in open adultery as husband and wife” with her husband Noah Mutambanengwe whom she wed on August 8, 2015.
The prominent businesswoman further told the court that she had expressed her dismay in a written demand to Chitereka but it was all in vain.
Boka said as an accomplished businessperson of considerable status, she had suffered damages requiring compensation in the sum of $100 000.
In another high profile case, Mohadi’s estranged wife, Tambudzani Bhudagi Mohadi, has petitioned the High Court seeking $1,5 million in damages from her hubby’s current girlfriend Juliet Mutavhatsindi. Tambudzani filed summons against Mutavhatsindi, who is yet to enter an appearance to defend.
It remains to be seen if the law on adultery is helping keep marriages intact or has become a gateway for relief on aggrieved parties.
In the end, matters of the heart remain a constant debate, complicated, a more moral than legal question. Daily News