A man who claimed damages against his ex-wife for ‘fraud’, because she did not disclose that she had an extra-marital affair resulting in the birth of their third child, has lost his case, reports GroundUp.

The man, identified only as MN in the ruling handed down by Free State High Court (Bloemfontein) Judge Corné van Zyl, was claiming R1.4m for the support he had paid for the youngest child following the couple’s divorce.

The matter was heard during 2017, and Judge van Zyl dismissed the application with costs in 2018. But the judge only gave his written reasons last week. He gave no reason for the delay.

Van Zyl said there was no legal duty on one spouse to disclose the existence of an extra-marital affair to the other.

‘The defendant (the ex-wife) therefore had no legal obligation to have informed the plaintiff (MN) of her one-night sexual encounter. Her failure to have done so consequently did not constitute a fraudulent non-disclosure,’ the judge said.

The judge also found that MN’s claim was ‘against public policy’.

The couple divorced in 2012 and a deed of settlement, which included child support, was made an order of court. However, about three years later, it was established through blood tests that the youngest child was not MN’s biological child. 

He said the child had a medical condition which was not in the health history of their family.

Her features were also 'different'.

MN, in his pleadings, said he had raised the child under the impression that she was his own. His ex-wife denied she had acted fraudulently and said they were both under the ‘mutual impression’ that the child was his.

His claim was contrary to the best interests of the child, she contended. She always believed that MN was the father of the child, reports GroundUp.

She had been ‘shocked’ by the DNA results.

Van Zyl said there was no evidence that the mother ‘actively or pertinently made any representations or lied’ to MN. ‘She simply kept her silence.’

On MN’s own version, he never confronted her about a possible affair, even when he suspected she was having a relationship with a pastor. 

The judge said he could not find, on the evidence, that it had been proved beyond a reasonable doubt that the mother knew that the child was not MN’s biological child.

Citing international and local case law, Van Zyl said there was no legal duty on a spouse to disclose the existence of an extra-marital affair to the other.

The judge said the irreparable emotional damage the case had caused to the child, to her relationship with MN, and to the whole family relationship, was ‘very evident from the totality of the evidence’.

Full GroundUp report

Judgment