Divorce Consolation Money | A Judgment on the Burden of Proof Where the Marital Community Had Already Broken Down at the Time of the Infidelity

In this case, the plaintiff, who claimed divorce consolation money, asserted that the marital relationship had broken down because of the infidelity between the plaintiff's spouse and the defendant, and sought consolation money from the defendant, the spouse's affair partner.

The lower court, however, determined for the following reasons that the plaintiff's principal claim was without merit.

1. Where a third party engages in infidelity with one spouse and thereby infringes upon, or interferes with the maintenance of, the marital community that constitutes the essence of marriage, and infringes upon the other spouse's rights as a spouse, thereby causing the other spouse mental suffering, such conduct is, in principle, a tort.

2. However, even if the spouses have not yet divorced, if the marital community has substantively broken down to a state beyond recovery, then even if a third party (the affair partner) engages in sexual conduct with one spouse, such conduct cannot be regarded as infringing upon the marital community or interfering with its maintenance.

3. In such a case, it also cannot be said that the affair partner caused harm by infringing upon rights relating to the marital community.(See Supreme Court, Decision of November 20, 2014, 2011 Meu 2977)

4. Here, the fact that the marital community had substantively broken down to a state beyond recovery must be proven by the party asserting it, that is, by the plaintiff.

5. The evidence submitted by the plaintiff, however, is insufficient to establish that, at the time the defendant engaged in infidelity with the plaintiff's spouse, the plaintiff's marital community had not yet broken down to a state beyond recovery.

6. Moreover, it appears insufficient to establish that the defendant knew, or could have known, of such circumstances.

The Supreme Court, which heard the final appeal in the divorce consolation money lawsuit, however, reversed the lower court's decision and remanded the case to the Suwon Family Court for the following reasons.

1. The burden of proving that, at the time of the infidelity, the plaintiff's marital community had broken down to a state beyond recovery rests on the defendant, who asserts it.

2. Even based on the facts as found by the lower court, it does not appear that, at the time the defendant engaged in the infidelity, the marital community between the plaintiff and the non-party had broken down to a state beyond recovery.

3. Nevertheless, the lower court denied the defendant's tort liability for the reasons stated in its judgment.

In this way, the lower court erred by misunderstanding the legal principles concerning the burden of proof, and this error affected the judgment.

Where the marital community has substantively broken down for reasons such as the spouses' prolonged separation, so that its substance no longer exists and, viewed objectively, it has reached an irreversible state beyond recovery, the marital community that constitutes the ‘essence of marriage’ cannot be regarded as being maintained.

This holds true even where the affair partner who engaged in infidelity with one spouse provided the cause of that breakdown.

In this judgment, however, the Justices held that the defendant from whom divorce consolation money was sought bears the burden of proving that the other party's marital community had broken down.

The Divorce Litigation Group of Daeryun Law Firm LLP includes attorneys experienced in family and divorce matters, and for each case it forms a dedicated team in which several attorneys handle the matter together.

If you have any questions regarding a divorce consolation money lawsuit, you are welcome to contact the relevant members at any time.