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Fundamina

On-line version ISSN 2411-7870
Print version ISSN 1021-545X

Abstract

CARNELLEY, Marita. Laws on adultery: comparing the historical development of South African common-law principles with those in English law. Fundamina (Pretoria) [online]. 2013, vol.19, n.2, pp.185-211. ISSN 2411-7870.

The article sets out the historical development of the legal consequences of adultery in South African and English law. Changes to the legal approach towards adultery took the form of a three-stage process: private self-help measures gave way to public criminal prosecutions, which in turn made way for a private claim for damages. In addition, the developments moved from being particularly harsh towards women, especially married women, to being completely gender-neutral. The article also tracks the legal relevance of adultery to the divorce laws. The direct links between the adultery and the divorce action as well as the prosecution and later the damages claim are noted. The article also records the ability of adulterers to eventually marry each other. The developments in the jurisprudence are explained chronologically, commencing with the development of Roman law through canon and Roman-Dutch law, and culminating in the existing South African legal system. This progression is compared to relevant historical developments in English law, commencing with observations made by Julius Caesar in 54 BC, and going up to current English law.

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