Lawsuit Against the Adulterous Partner (Female)

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

An act of infidelity is not mere fondness or social interaction, but, from the perspective of an ordinary person, requires sexual contact or an intimate relationship to a degree that can be regarded as a violation of the spousal duty of fidelity (Article 826 of the Civil Act).

What is the duty of fidelity?

Example circumstances

A mere exchange of text messages or meetings at the level of friendship, however, are difficult to recognize as an act of infidelity.

In addition, it is not necessary to prove that sexual relations actually occurred; an act may be recognized based solely on circumstances amounting to infidelity.

One of the important issues in a lawsuit against the adulterous partner is whether the act of infidelity actually harmed the couple's marital relationship.

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

If the marital relationship had already broken down, however, it is difficult to hold the adulterous partner responsible.

For example, if the couple has continued to live separately and the marriage has in effect ended, the adulterous partner's act of infidelity cannot be regarded as the cause of the breakdown of the marriage.

This point has also been stated in Supreme Court precedent.

Supreme Court, Decision of November 20, 2014, 2011Meu2997

Ultimately, whether the marital relationship was substantially maintained at the time of the act of infidelity becomes the key criterion for recognizing consolation money through a lawsuit against the adulterous partner.

To claim consolation money against the adulterous partner, the injured spouse must prove that they suffered emotional distress as a result of the act of infidelity.

Because emotional suffering is difficult to prove directly, it is generally assessed by comprehensively considering the duration of the act of infidelity, its repetition, its content, and the victim's reactions.

Under Article 766 of the Civil Act, a lawsuit against the adulterous partner may be filed within the following periods.

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

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

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

However, consolation money is not a fixed amount; the court determines it individually by comprehensively considering the form and result of the act of infidelity, the degree of the adulterous partner's involvement, and the victim's suffering.

The court generally determines the amount of consolation money by comprehensively considering the following factors.

To prove the existence of an act of infidelity, objective circumstances sufficient to recognize a 'violation of the duty of fidelity' from the perspective of an ordinary person are needed.

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

Proving that the adulterous partner knew, or could have known, that the other spouse was a married person is very important for establishing the adulterous partner's tort liability.

This is because if the adulterous partner did not know that the husband was married, a tort may not be constituted.

The Supreme Court has also stated this point as follows.

Supreme Court, Judgment of August 18, 1987, 87Meu19

Accordingly, if it cannot be proven that the adulterous partner was aware or could have been aware that the partner was married, there is a strong likelihood that the court will deny liability, so securing evidence on this point is critical to the claim.

Key supporting materials

A lawsuit against the adulterous partner is a civil action and a claim for damages.

To file the lawsuit, a complaint claiming damages must first be drafted.

The following content should be included.

The drafted complaint may be filed with the family court if it is premised on divorce, and with an ordinary civil court otherwise.

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

Based on this, the answer filed by the opposing adulterous partner is reviewed to identify the rebuttal arguments and evidence.

At the pleading date, the arguments of both sides are exchanged, and witness examination, examination of evidence, and the like may take place, so it is necessary to organize the content of the statements and prepare witnesses in advance.

At this point, the plaintiff who filed the lawsuit against the adulterous partner must specifically prove the following matters.

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

If a party wishes to contest the court's judgment, they may appeal within 14 days after the judgment is served.

Even though a judgment ordering payment of consolation money has been rendered, if the adulterous partner does not pay the consolation money, an order to comply may be requested from the family court.

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

If the adulterous partner still does not pay the consolation money after receiving an order to comply, an administrative fine may be imposed and a detention order may be issued against them.

In addition, there is also a method of applying for compulsory execution and receiving the consolation money through an auction disposition.

If you have received a complaint served by the court, the first thing to do is to accurately grasp the relief sought and the underlying facts.

You should review the contents of the complaint carefully 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 materials or notes on the situation at the time that can prove you did not know about the marital status.

The answer must be filed within 30 days of the date the complaint is served, and it is the document that officially sets out your position.

Depending on the situation, you can build your defense around the following arguments.

It is also advisable to prepare materials that can rebut the plaintiff's claims, such as conversation records, statements from third parties, and materials explaining the circumstances of the relationship.

Many lawsuits against the adulterous partner (female) are resolved through conciliation proceedings.

Even if an act of infidelity is recognized as fact, you can reduce the burden of litigation by agreeing on the amount of consolation money or the method of payment.

If you want to minimize emotional conflict with the plaintiff and reach a quick resolution, you may also consider acknowledging partial liability while presenting grounds for mitigation to encourage conciliation.

This law firm includes many attorneys who are registered with the Korean Bar Association as attorneys handling divorce matters and who have an average of more than 10 years of experience.

From proving infidelity, claiming consolation money, filing and responding to litigation, to enforcing the judgment, strategic support can be provided throughout the entire process of a lawsuit against the adulterous partner (female).

If it is difficult to prepare for the lawsuit on your own, we encourage you to proceed with a more accurate and prompt process with the support of attorneys handling divorce matters.