Is infidelity during divorce lawsuit also a tort under the Civil Act?

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infidelity during divorce lawsuit

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作者: 김국일

Hello. This is a divorce-specialized attorney from Daeryun Law Firm.

Whether infidelity during a divorce lawsuit, that is 'infidelity during divorce lawsuit,' can be evaluated as a tort under the Civil Act is determined based on when the marital relationship substantially broke down and when the infidelity occurred.

If you are in the middle of a divorce lawsuit, the relationship between the spouses is likely already seriously damaged.

That is, if the complaint has been filed with the court and separation has occurred, meaning the marital life is no longer effectively maintained, infidelity occurring after that is in principle not evaluated as the cause of marriage breakdown and is difficult to view as a tort under the Civil Act.

Article 750 of the Civil Act provides that 'a person who causes damage to another by intent or negligence has the responsibility to compensate for the damage.'

Therefore, for an alimony claim to be granted, (1) the infidelity must exist, and (2) the causation must be proven that the marital relationship reached breakdown due to it.

However, if the conflict between spouses had already deepened and the marital relationship had effectively ended, and a new relationship was started after the divorce lawsuit was filed, the infidelity is highly likely to be evaluated as a 'result' rather than a 'cause' of marriage breakdown.

In such cases, since the requirements for tort under the Civil Act are not met, even if the spouse claims alimony, it is highly likely not to be accepted by the court.

Actually, the court has ruled that "infidelity occurring while spouses were already separated or the marital relationship had substantially reached breakdown is difficult to be considered as having caused the marriage breakdown, and therefore cannot be viewed as a tort that serves as the basis for alimony claims."

That is, infidelity during divorce lawsuits is mostly viewed as occurring after marriage breakdown and is not recognized as a tort.

However, exceptionally, if you continue a relationship during the divorce lawsuit with the same person (existing infidelity partner) who was the cause of the divorce lawsuit, the story changes.

In this case, you should secure objective materials about the timing of marriage breakdown such as separation start date, complaint filing date, conversation contents, text messages, emails, etc., and organize circumstances around which the court can recognize that "the marital relationship was already in breakdown."

Also, you must prove that the current relationship with your partner started 'after the divorce lawsuit was filed.'

If the other party distorts this and claims "we were dating before the divorce," you must present materials (messenger records, photos, etc.) that can prove specific timing and circumstances.

Even if the other party claims alimony, you should actively dispute through a divorce-specialized attorney by claiming it is not recognized as a tort and that the cause of marriage breakdown is unrelated to your infidelity.

Daeryun Law Firm's divorce-specialized attorneys prepare strategic response measures focusing on detailed issues such as marriage breakdown responsibility, infidelity timing, and alimony calculation.

Since all acts during the marital relationship termination process can lead to legal disputes, it is safest to receive expert assistance early on.