Infidelity in marriage,
Can you reclaim compensation?
This article makes a brief analysis of the legal consequences from the infidelity in marriage in the Spanish juridical system without to limit its field of study. I will cite some judicial decisions which include the sanction of the acts of infidelity and the legal consequences over it. I do this analysis through some simple questions that allow the reader to understand as simple as possible.
I. What are the legal consequences of infidelity in marriage?
Article 68 of the Spanish Civil Code includes among the duties inherent to the marriage contract "keep your fidelity."
Failure to comply with this duty will have the consequence of marital separation and / or divorce, if the other spouse wants.
However, there is a very important question; Can you be compensated for moral damages caused by an infidelity?
It could be considered that the infidelity is a breach of contract. Consequently, compensation for moral damages could be claimed, (Article 1,101 of the Civil Code).
II. What’s the doctrine of our courts over the compensation for moral damages from a breach of contract for infidelity?
On July 30, 1999, the Supreme Court issued judgment (701/99) in which it did not estimate the action from the husband affected by an infidelity. He claimed compensation of € 60,000 for a breach of contract due to an infidelity. It happened when he knew that his ex-spouse had had an sexual relationship with another man of whom two children were born (Luis Ángel and Eva), plus € 73,424.68 over Food pension of the two children who were not his.
The Supreme Court acknowledged that the wife's behavior was bad and with bad faith. She caused economic and moral damages suffered by the husband frustrating his future projects. However, the Supreme Court rejected the appeal because the infidelity deserves a social and ethical reproach. But it’s not any breach of contract in marriage to be entitled to compensation over the Article 1,101 of the Civil Code.
III. Are there other legal channels in the Spanish legal system to claim compensation for moral damages from unfaithfulness in marriage?
On March 3, 2016, the Provincial Court of Santander sentenced the wife to had to pay to the husband the amount of 30,000 €, for moral damages (article 1,902 of the Civil Code); although the husband claimed 70,000 € for moral damages and the repayment of the amounts paid as maintenance and the cost of paternity tests.
The Court counted with several resolutions of the Supreme Court (judgment of June 30, 2009 (rec 532/05), which recognized the possibility of damages due to non-contractual liability in the area of the subsequent relations to a marriage crisis, over the deprivation of the right of the appellant to communicate with his son and to exercise the custody that had been attributed to him in judgment; or the judgment, dated July 14, 2010, in a similar case analyzed in the previous section, it was not estimated due to the expiration of the deadline for filing the claim, but recognized the right to reclaim.
In the present case, the court didn’t considered a compensation over a infidelity but the right of reclaim was estimated because the husband knew after separation and divorce that his daughter was of another parent.
The same doctrine was considered by the Provincial Court of Barcelona (Judgment, dated May 30, 2016), and the Provincial Court of Valencia (Judgment, dated November 2, 2004), among others.
It does not appear that infidelity can be a motive to reclaim compensation to the offending spouse. Although it can be the precedent to reclaim moral damages from further consequences. For example, the case we have examined (very common) or the disclosure of the fact. It could be compensated for illegitimate intrusion of the right to honor and privacy. However, the matrimonial pre-agreements could be a legal instrument.
Over the requirement of malice and guilt in the conduct of the offending party, there is no unanimous criterion in the courts in the case we have dealt.
To reclaim compensation for moral damages in these cases must be weighed the circumstances concurrent in each case. It tries to help support the pain and anguish of people harmed by the unfair, abusive or illegal act of another.
The reclaim period over the non-contractual liability to reclaim such moral will be 1 year.
Finally, it’s important to note that the courts allow another reclaims over the moral damages, for example, obstruction of one of the parents to exercise parental authority or the visitation regime, having to analyze the circumstances of each case.
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