Wife wants to sue neighbourhood woman for affair

DEAR MRS MACAULAY, A woman in our neighbourhood seduced my husband, and now claims that she is pregnant for him. We all live on the same street, and she was aware that he’s married. He said he could not resist temptation, in a period when I was overseas working. Could I sue her for interfering in my marriage? I know that in some states in the US, you can file a lawsuit against a person who had sex with your spouse during the marriage, or who ruined your marriage. Does this kind of law exist in Jamaica?

I have to commence this reply to you by referring first to your assertion that the woman seduced your husband. Surely, you cannot be serious about this statement!? Or are you just voicing false hopes to comfort yourself about what is clearly your husband’s conscious infidelity?

I am sure that you are not a fool, and yet you have made yourself sound like one by coming to such a conclusion from what your husband told you about his affair. As the saying goes, it takes two to tango!   You go even further by stressing that the woman was aware that your husband was married.  You cannot possibly know this as a fact, nay more a provable fact. You do not even indicate that she had ever met you and your husband, and that you were introduced to her as husband and wife. In fact, this is also a mere assertion, a mere supposition on your part.

You must agree that it is your husband who must best know that he is a married man and ought to have respected his own status as such.  He threw it away and was clearly lying to you, and you bought his lies.   You have clearly forgiven him, and I conclude that you are still living together as man and wife.  If I am correct in such a conclusion, then there has not been a lasting “alienation of affection”, which is the tort for which damages are awarded in some states in the United States of America. If you were in one of them, and filed such a claim, you would have had to prove to the court that you were suffering the ill consequences of the affair on your husband, who no longer cares for you as he used to do.   Again, you have not said that this is so.  You in fact state clearly that it was during your absence from the island that the affair happened.

There is no claim known to law as “interfering in a marriage”.  It seems to me that the only truth your husband stated to you was that he could not resist temptation.  He was tempted and acted on it, which is not an unusual course of action among couples here in Jamaica when one spouse goes abroad for long periods of time.  I understand that you are angry, and the further complication that she may have your husband’s child will be a lasting reminder of his infidelity which cannot then be erased.

Let me then answer your question directly and simply.  No, you cannot sue this woman for interfering with your marriage.  There is no such cause of action in Jamaican law anymore.  Under the old and repealed Divorce Act here in Jamaica, there was provision in it for spouses who were applying for decrees of the dissolution of their marriages, to name such third parties (those having or who had affairs with their spouses) in their petitions for divorces as “correspondents”, and give details of the infidelity. The majority of these wronged spouses were largely husbands, who would sue the third parties for the tort of alienation of affection and claim damages for the wrong done to them.  Remember that a wife was for a long time chattel, and subject to the husband’s will, and he controlled her properties which she took into the marriage.  This was maintained until the Married Women’s Property Act of 1887 was passed and became applicable law in Jamaica.  This was the law that for the first time acknowledged women’s rights to own and control their property independently of their husbands.  It was repealed by the Property (Rights of Spouses) Act 2004, which became operational in 2006, and which brought the law of spouses’ properties, both married and common-law, into the modern concept of applying equally to both men and women.

However, the Matrimonial Causes Act repealed the Divorce Act, which had contained “matrimonial offences” of adultery, desertion, and cruelty which were grounds for divorce. These were replaced in the existing Act by the sole ground of “irretrievable breakdown of marriage”, a no-fault concept for either spouse to petition for and obtain a divorce.  The Act requires that the petitioner must relate the circumstances which led to and caused the irretrievable breakdown of the marriage, and that the parties have been living separate and apart for at least one year, and that there is no hope of the parties living together again as man and wife.  No more “correspondents” could be named in any petition for dissolution of marriage after the passage of the Matrimonial Causes Act 1989.

So, not only are divorce petitions based on the singular ground, but subsequent amendments and the Rules for the Act’s application have made the application for divorces less onerous, in that they can be filed, and served, and can be heard by a judge without a court hearing with the parties in attendance, but the judge reads the documents filed and decides without any oral evidence being given, if the petitioner so wishes and applies for this.

So, dear wife, it is up to you what you do about your husband’s infidelity.  You seem to have decided to still be with him. If I am correct, then I wish you all the very best. Perhaps you should now stay home with him and work on your marriage rather than let anger, disappointment and a desire to punish only one party.   I hope that you have understood the legal situation, that you cannot file a claim against her, by placing all the blame on the woman. This is patently incorrect, and makes you look silly and foolish.  Treat the situation in a mature and sensible and well-considered way, and get on with your life as you finally decide after your due consideration of the whole matter and conclude what would be best for you and your family.

As for the possibility of the woman being pregnant, you should also deal with this in a very mature way, and be fully aware that the baby bears no fault at all in this. If you truly love your husband and plan to stay with him, you could find in you a love for his child as well, because that child would have his blood and DNA.

I trust that you will acquire peace of mind by helping your husband to ascertain this fact by having a DNA test done, and if the result is that the child is his, then do not make it difficult for him to make  provision for the child’s maintenance and to have a relationship with the child.

I hope that you will make the best decision in the circumstances and blessings to you all.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5.