Is an affair during divorce litigation also a tort under the Civil Act?

Hello. This is an attorney experienced in divorce cases at Daeryun Law LLC.

An affair during divorce litigation, that is, whether an 'affair during divorce litigation' can be evaluated as a tort under the Civil Act is judged on the basis of the point at which the marriage substantially broke down and the timing of the affair.

If a divorce lawsuit is underway, there is a high likelihood that the relationship between the spouses has already been seriously damaged.

In other words, if the marriage is at a stage where married life is effectively not maintained, such as after the complaint has been filed with the court and separation has occurred, an affair committed thereafter is, in principle, not evaluated as the cause of the breakdown of the marriage and is difficult to regard as a tort under the Civil Act.

Article 750 of the Civil Act provides that 'a person who causes damage to another by an intentional or negligent act is liable to compensate for the damage'.

Therefore, for a claim for consolation money to be recognized, ① an affair must exist, and ② a causal relationship whereby the marriage broke down as a result must be proven.

However, if the conflict between the spouses was already deep and the marriage was effectively terminated, and a new relationship began after the divorce lawsuit was filed, there is a high likelihood that the affair will be evaluated not as the 'cause' but as the 'result' of the breakdown of the marriage.

In such a case, since the requirements for a tort under the Civil Act are not met, even if the spouse claims consolation money, there is a high likelihood that it will not be accepted by the court.

The court has actually rendered a judgment stating, "An act of infidelity that occurs while the spouses are already separated or the marriage has substantially broken down is difficult to regard as having caused the breakdown of the marriage, and therefore cannot be regarded as a tort that forms the basis for a claim for consolation money."

In other words, an affair during divorce litigation is, in most cases, regarded as an act occurring after the breakdown of the marriage and is not recognized as a tort.

However, exceptionally, the matter is different where the person continues, even during the divorce litigation, a relationship with the party who was already the cause of the divorce lawsuit (the previous affair partner).

In this case, it is advisable to secure objective materials regarding the point of the marriage's breakdown, such as the date separation began, the date the complaint was filed, the contents of conversations, and text messages and emails, and to organize your case around circumstances that would allow the court to recognize that "the marriage had already broken down."

In addition, you must prove that the relationship with your current partner began 'after the divorce lawsuit was filed'.

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

Even if the other party claims consolation money, you should actively contest the matter through an attorney experienced in divorce cases, arguing that it is not recognized as a tort and that the cause of the breakdown of the marriage is unrelated to your affair.

The attorneys experienced in divorce cases at Daeryun Law LLC prepare strategic response measures centered on detailed issues such as responsibility for the breakdown of the marriage, the timing of the infidelity, and the calculation of consolation money.

Since every act in the process of terminating a marriage can lead to a legal dispute, it is safest to respond with the assistance of an expert at an early stage.