Justice Evrol Mariette Peters held that while the husband had purchased the “pleasure device”, there was no evidence it was intended for the woman, named a co-respondent in the proceedings, nor proof of sexual intercourse between them.
“Adultery, as recognised in matrimonial jurisprudence, requires proof of voluntary sexual intercourse between a married person and someone who is not their spouse.
“The act must involve physical intimacy of the kind that satisfies the legal definition; mere suggestive conduct, sexual innuendo, or the giving of intimate gifts falls short of this threshold,” the judge said in a 44-page judgment released last month.
Peters, now a Court of Appeal judge, said evidence of adultery must go beyond mere suspicion.
“Even if the Court were to accept, for the sake of argument, that the respondent (husband) purchased the pleasure device for the co-respondent, the allegation still failed to establish that the respondent had engaged in the physical act of sexual intercourse with her,” the judge said.
Peters also rejected the wife’s claim that a previous affair her husband had in 2010 with another woman, identified as JL, whom he met at a gym, showed a pattern of adulterous behaviour.
“Although the fact of the adulterous relationship between the respondent and JL was not in dispute, it nevertheless amounted to propensity evidence. Under the law, such evidence is generally inadmissible,” the judge said.
“To rely on the prior incident here would risk unfair prejudice against the respondent, and would undermine the fundamental requirement that each case be decided strictly on its own facts and merits.”
Peters also noted that the earlier affair had taken place “roughly a decade before the eventual breakdown of the marriage”. “The oft-quoted adage, ‘one swallow does not make a summer,’ is apt in this context,” she said.
“The mere occurrence of an alleged act of adultery 10 years ago with JL did not, without more, permit the court to draw the conclusion that the respondent had committed adultery with the co-respondent in the present case,” she said.
In the present case, the wife sought a dissolution of the 22-year marriage, custody, maintenance, and a division of matrimonial assets. The husband cross-petitioned for divorce and joint custody.
Peters pronounced the divorce and made the decree absolute with immediate effect, ruling that both parties bore equal responsibility for the irretrievable breakdown of the marriage.
“It was apparent that the petitioner (wife) had displayed controlling tendencies and struggled with deep-seated insecurities. Her insecurity was so profound that she resorted to undergoing breast augmentation and abdominoplasty in an effort to enhance her self-image.
“When the procedures did not yield the desired results, she directed the blame towards the respondent. He became the target of her frustrations, functioning as little more than an emotional ‘punching bag’.
The judge also found that the husband had “substantially aggravated and entrenched the petitioner’s insecurities” by his conduct and past indiscretion, “thereby contributing in no small measure to the deterioration of the marital relationship”.
“Instead of offering reassurance or support, the respondent frequently distanced himself from the petitioner and preferred to spend his time with friends, including the co-respondent.”
The husband was directed to pay child maintenance, while the division of matrimonial assets was ordered in such a manner that only the matrimonial home was to be divided equally between the parties.
The couple, whose names were anonymised in the judgment, were married in 2003. Their union produced two daughters, now aged 21 and 15.
Their marriage broke down over time, amid allegations of adultery and abuse.