CONTENTS
- 1. Background of the Claim for Consolation Money in a Lawsuit Against the Adulterous Partner
- - The Lower Court's Determination: Finding the Limitation Period Complete Based on the Time of Awareness of the Infidelity
- - Consolation Money and the Starting Point of Extinctive Prescription
- 2. The Supreme Court's Determination That the Limitation Period for Consolation Money in a Lawsuit Against the Adulterous Partner Runs From the ‘Time of Divorce’
- - The Unlawfulness of the Lower Court's Determination: The Principle of Party Disposition and a Misapprehension of the Law
- 3. A Judgment That Established Practical Standards for Consolation Money in Lawsuits Against the Adulterous Partner
- - Points to Note When Claiming Consolation Money
- 4. An Overview of the Types of Consolation Money in Lawsuits Against the Adulterous Partner
1. Background of the Claim for Consolation Money in a Lawsuit Against the Adulterous Partner
This case, which addressed consolation money in a lawsuit against the adulterous partner, raised the question of when the period of extinctive prescription begins to run for a claim for consolation money against a third party in a lawsuit against the adulterous partner, where the spouse's infidelity and the third party's involvement have brought about the breakdown of the marital relationship.
The plaintiff married in 1998 and maintained the marriage for a long time, but came to learn that the spouse had entered into an improper relationship with the defendant, a third party. As that infidelity continued thereafter, the marital relationship reached a state from which recovery was difficult.
The plaintiff sought consolation money in a lawsuit against the adulterous partner from both the spouse and the defendant on the ground that the infidelity had brought the marital relationship to breakdown.
While the litigation was pending, a divorce by mediation was established between the plaintiff and the spouse, and the issue was thereafter narrowed to whether the claim for consolation money against the defendant, a third party, had been extinguished by prescription.
The Lower Court's Determination: Finding the Limitation Period Complete Based on the Time of Awareness of the Infidelity
The lower court took the view that, where a third party commits infidelity with a spouse, the consolation money claim held by the other spouse is no more than a claim for damages based on ‘the tortious act of infidelity itself’.
Accordingly, it held that the three-year short-term period of extinctive prescription under Article 766, paragraph 1 of the Civil Act had already begun to run at the time the plaintiff became aware of the defendant's infidelity (around 2017), and that the present action filed in 2022 was already barred by prescription. The lower court therefore dismissed the plaintiff's claim for consolation money in the lawsuit against the adulterous partner.
Consolation Money and the Starting Point of Extinctive Prescription
The key issues in this case were as follows.
- Whether, where there is infidelity by a third party, a claim for consolation money based on the divorce can be distinguished from a claim for damages based on the individual acts of infidelity themselves
- For a claim for consolation money in a lawsuit against the adulterous partner based on the divorce, when the starting point of the period of extinctive prescription should be deemed to be
2. The Supreme Court's Determination That the Limitation Period for Consolation Money in a Lawsuit Against the Adulterous Partner Runs From the ‘Time of Divorce’
The Supreme Court reversed the lower judgment and remanded the case.
The court first made clear that, where the spouse's infidelity and a third party's involvement break down the marital relationship and lead to divorce, the claim for consolation money based on the divorce is a claim for damages separate from the individual acts of infidelity.
The court also held that consolation money in a lawsuit against the adulterous partner does not evaluate only a single act of infidelity, but is damage that is determined by evaluating, as a whole, the course of events from the occurrence of the infidelity, through the breakdown of the marital relationship, to the final divorce, treated as a single tortious act.
Accordingly, the court determined that, for a claim for consolation money in a lawsuit against the adulterous partner, the time when the injured spouse ‘comes to know of the damage and the perpetrator’ should be deemed to be the time the marriage was dissolved, that is, the time the divorce was established, and that the three-year short-term period of extinctive prescription under Article 766, paragraph 1 of the Civil Act runs from that time.
(2) The same shall apply where ten years have elapsed from the date of the tortious act.
The Unlawfulness of the Lower Court's Determination: The Principle of Party Disposition and a Misapprehension of the Law
The Supreme Court pointed out that the lower court's determination contained the following serious errors.
Although the plaintiff had consistently asserted that “this claim for consolation money is based not on the defendant's individual acts of infidelity themselves, but on the resulting breakdown of the marital relationship and the divorce that followed,” the lower court, contrary to the plaintiff's purport of the claim, arbitrarily construed and decided it as a simple claim for damages for a tortious act.
The court held that this not only misapprehended the law concerning the nature of a claim for consolation money based on the divorce and the starting point of its period of extinctive prescription, but also, by deciding on the basis of matters the party had not even requested, constituted an unlawful violation of the principle of party disposition under the Civil Procedure Act.
3. A Judgment That Established Practical Standards for Consolation Money in Lawsuits Against the Adulterous Partner
This judgment sets out the following important standards in the practice of disputes over consolation money in lawsuits against the adulterous partner.
This is a judgment that clarified the importance of structuring the claim in practice, where defenses of extinctive prescription frequently arise in lawsuits against the spouse's affair partner, consolation money claims joined with divorce, and similar matters.
Points to Note When Claiming Consolation Money
This judgment offers the following implications in the course of preparing a claim for consolation money in a lawsuit against the adulterous partner.
- Whether the claim is one for ‘consolation money based on the divorce’ may become the key issue, rather than when the fact of the infidelity became known
- It is necessary to distinguish the nature of the consolation money claim and to assert and prove it accordingly from the stage of filing the complaint
- For a claim for consolation money against a third party, the distinction between family litigation and civil litigation, and the specification of the cause of the claim, have a decisive effect on the outcome
In the end, this is a judgment that once again confirmed that consolation money in a lawsuit against the adulterous partner is a highly technical legal matter whose outcome may turn on how the claim is structured and how its legal nature is set.
4. An Overview of the Types of Consolation Money in Lawsuits Against the Adulterous Partner
Because the legal nature of consolation money in a lawsuit against the adulterous partner and the starting point of its extinctive prescription differ depending on how the claim is structured, it is necessary to understand the types by clearly distinguishing among them.
In particular, in cases where the infidelity took place over a long period and subsequently led to divorce, which type of consolation money is claimed may determine the success or failure of the litigation.
In practice, the following two types are distinguished.
Category | Consolation Money Based on the Infidelity Itself | Consolation Money Based on the Divorce |
Basis of the claim | Each individual act of infidelity itself | The breakdown of the marriage and the divorce caused by the infidelity |
Evaluation of the tortious act | Evaluated on a per-act basis | The entire course of events up to the breakdown of the marriage evaluated as a single tortious act |
Starting point of extinctive prescription | The date of becoming aware of the infidelity and the perpetrator | The time the marriage was dissolved (finalization of the divorce or establishment of mediation) |
Nature of the litigation | General civil litigation | Family litigation (Type Da family case) |
In this judgment, the Supreme Court made clear that the plaintiff's claim was a claim for consolation money based not on the past acts of infidelity themselves, but on the fact that the infidelity broke down the marital relationship and ultimately led to divorce.
Accordingly, the court determined that the period of extinctive prescription likewise runs not from the time the infidelity became known, but from the time the divorce was established, which shows how important the distinction among types of consolation money is.
Daeryun Law Firm LLP focuses, in consolation money claim cases, on precisely distinguishing the nature of the infidelity from the course of the breakdown of the marriage, and on structuring the type of consolation money claim in a manner favorable with respect to extinctive prescription.
By comprehensively reviewing the scope of the affair partner's liability, whether joint tort is established, and the timing and form of the claim, the firm seeks to prevent unnecessary disputes over prescription.
The firm also responds with a consistent strategy in complex matters that require pursuing family litigation and civil litigation in parallel, so that clients' rights may be substantively protected.
If you wish to experience the firm's one-stop legal services in a related matter, you are welcome to schedule a legal consultation.
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