Lawsuit Against the Adulterous Partner (Male)

The most important requirement in a lawsuit against the adulterous partner (male) is the existence of an 'act of infidelity.'

An act of infidelity is not mere affection or interaction, but, from the perspective of an ordinary person, there must be sexual contact or an intimate relationship to the extent that it can be regarded as 'an act in violation of the spouses' duty of fidelity (Article 826 of the Civil Act).'

What is the duty of fidelity?

Example circumstances

However, a mere exchange of text messages or a meeting at the level of friendship is difficult to recognize as an act of infidelity.

In addition, it is not necessarily required to prove that sexual relations occurred, and recognition may be possible based on circumstances amounting to an act of infidelity alone.

One of the important issues in a lawsuit against the adulterous partner is whether the affair actually harmed the spouses' marital relationship.

In other words, liability for consolation money is recognized only where the adulterous partner's conduct substantively broke down the marital relationship, or where there are circumstances showing that it at least contributed to the breakdown of the marriage.

However, if the marital relationship had already broken down, it is difficult to hold the adulterous partner liable.

For example, if the spouses had continued to live separately and the marriage had effectively ended, it is difficult to regard the adulterous partner's affair as the cause of the breakdown of the marriage.

This point is also set out in Supreme Court precedent.

Supreme Court, decided November 20, 2014, 2011Meu2997

Ultimately, whether the marital relationship was substantively being maintained at the time of the affair becomes the central criterion for recognizing consolation money through a lawsuit against the adulterous partner.

To claim consolation money from the male affair partner, the aggrieved spouse must prove that they suffered mental distress as a result of the infidelity.

Because mental distress is difficult to prove directly, it is generally assessed by considering the duration, repetition, and content of the infidelity, the victim's reaction, and other factors comprehensively.

A lawsuit against the adulterous partner (male) may be filed within the following periods under Article 766 of the Civil Act.

In addition, a claim for consolation money through a lawsuit against the adulterous partner (male) is a right separate from divorce.

In other words, even if you have not divorced, a claim for consolation money for the mental harm resulting from the infidelity may be exercised independently.

It is often recognized in a range of between 5 million won and 30 million won.

However, consolation money is not a fixed amount. The court determines it on a case-by-case basis, taking comprehensive account of factors such as the manner and consequences of the act of infidelity, the degree of the adulterous partner's involvement, and the suffering of the victim.

The court mainly determines the amount of consolation money (solatium) by comprehensively considering the following factors.

To prove the existence of an act of infidelity, from the perspective of an ordinary person, objective circumstances sufficient to recognize a “breach of the duty of fidelity” are required.

Mental suffering is difficult to prove directly, but it may be recognized through circumstances such as the following.

Establishing that the affair partner knew or could have known that the wife was a married person is very important for having the affair partner's tort liability recognized.

This is because, if the affair partner did not know that the wife was married, a tort may not be established.

The Supreme Court has also held on this point as follows.

Supreme Court Decision 87Meu19, decided August 18, 1987

Accordingly, if it cannot be established that the affair partner was aware, or could have been aware, that the wife was married, there is a high likelihood that the court will deny liability, so securing evidence on this point is crucial.

Key evidence

A lawsuit against the adulterous partner (male) is a civil lawsuit, and it is a lawsuit for damages.

In order to file the lawsuit, a complaint claiming damages must first be drafted.

At this point, the following content should be included.

The drafted complaint should be submitted to the family court where it is premised on divorce, and to the ordinary civil court in other cases.

Once the complaint is filed, the defendant must submit an answer within 30 days from the date the complaint is served.

Accordingly, the answer submitted by the opposing adulterous male partner is reviewed to identify the counterarguments and evidence.

At a pleading date, the arguments of both sides are exchanged, and examination of witnesses and examination of evidence may take place, so in preparation for this, you should organize the content of your statements and prepare witnesses.

At this point, the plaintiff who has filed a lawsuit against the adulterous partner (male) must specifically prove the following matters.

Once all procedures are concluded, the court renders a judgment by comprehensively considering the evidence and the arguments.

If one wishes to contest the court's judgment, an appeal may be filed within 14 days after service of the judgment.

Even where a judgment ordering the payment of consolation money has been rendered, if the adulterous partner does not pay the consolation money, an application for an enforcement order may be filed with the family court.

An enforcement order refers to an order by which the family court, where a person, despite having a property obligation such as the payment of money under a judgment of the family court, fails to perform that obligation without justifiable reason, directs that the obligation be performed within a certain period (Article 64(1) of the Family Litigation Act).

Where the adulterous partner fails to pay the consolation money even after receiving an enforcement order, the adulterous partner may be subject to the imposition of an administrative fine and a detention order.

There is also a method of applying for compulsory execution and receiving the consolation money through disposal by auction.

When you receive a complaint served by the court, the first thing to do is to accurately ascertain the purport of the claim and the facts.

You should carefully review the contents of the complaint and check the following points.

If you did not know that the other party was married, liability may not be recognized.

Therefore, it is advisable to keep circumstantial evidence that can prove you did not know of the marriage, or to make a note of the situation at the time.

The answer must be submitted within 30 days from the date the complaint is served, and it is a document that formally states your position.

Depending on the situation, a defense may be structured around the following lines of argument.

In addition, it is advisable to prepare conversation records, statements from third parties, and materials that can explain the circumstances at the time of the relationship, which can rebut the plaintiff's claims.

Many lawsuits against the spouse's affair partner are also resolved through the conciliation procedure.

Even if the infidelity is recognized as fact, the burden of litigation can be reduced through adjustment of the amount of consolation money or agreement on the method of payment.

If one wishes to minimize emotional confrontation with the plaintiff and to achieve a swift resolution, an approach of acknowledging partial responsibility while presenting grounds for mitigation and encouraging conciliation may also be considered.

Our law firm has many attorneys, including divorce specialist attorneys registered with the Korean Bar Association and specialized attorneys with an average of more than 10 years of experience.

We can provide strategic assistance throughout the entire process of a lawsuit against the adulterous partner (male), from proving infidelity, claiming consolation money, and filing and responding to the lawsuit, to enforcing the judgment.

If it is difficult to prepare for the lawsuit on your own, we recommend proceeding through a more accurate and prompt procedure with the assistance of a divorce specialist attorney.