Can one be compensated for marital infidelity?

Marital infidelity, while constituting grounds for fault-based separation, may also be considered a civil tort and entitle the injured spouse to compensation. But under what circumstances can adultery lead to financial compensation? This article examines the necessary conditions, key judicial rulings, and strategies to assert one’s rights.

The duty of fidelity and applicable laws

The duty of fidelity is established by Article 143 of the Italian Civil Code, which imposes mutual loyalty and respect between spouses. This duty is among the fundamental obligations of marriage, and its violation can have significant consequences in separation and divorce proceedings.

Article 151 of the Italian Civil Code states that separation can be attributed to the spouse responsible for conduct that breaches marital duties, including infidelity. However, fault-based separation does not automatically entitle the injured spouse to compensation.

If One Was Aware of the Infidelity and Tolerated It for a Certain Period, Can They Still Seek Fault-Based Separation?

The Italian Supreme Court addressed this issue in Ordinance No. 25966 of September 2, 2022, ruling that:

“The proof of tolerance expressed by a spouse towards the other’s infidelity has been deemed irrelevant, as it does not qualify as an ‘objective exoneration’ capable of nullifying the illicit nature of the conduct or implying a tacit waiver of marital duties, given their non-disposable nature. Instead, such tolerance may be considered, alongside other elements, as an indicator of a long-standing crisis in the marriage, in assessing whether the affectio coniugalis had already ceased.”

This ruling clarifies that tolerating a spouse’s infidelity does not automatically eliminate the possibility of seeking fault-based separation. However, if the marital relationship had already deteriorated due to other reasons and the affectio coniugalis had already disappeared, the infidelity may not be deemed the decisive cause of the marital crisis (For further information: Separation of charges: what happens when betrayal is tolerated?).

When is damage from infidelity compensable?

Regardless of whether fault-based separation is granted, compensation may be sought if the injured spouse can demonstrate that the betrayal violated constitutionally protected rights such as individual dignity, psychological well-being, or honor.

Indeed, Article 2059 of the Italian Civil Code governs compensation for non-pecuniary damage and applies in cases where a breach of the duty of fidelity has caused serious harm, exceeding the normal suffering associated with the end of a marriage. Such damage must affect fundamental personal rights, including health (Article 32 of the Italian Constitution) and dignity and honor (Article 2 of the Italian Constitution).

Judicial precedent has established that mere infidelity is insufficient for compensation; rather, it must be shown that “the affliction induced in the spouse exceeds the threshold of tolerability and results, due to its nature or the severity of the distress caused, in the violation of a constitutionally protected right, such as, for example, the right to health, honor, or personal dignity” (Italian Supreme Court, Civil Section, Judgment No. 26383 of November 19, 2020; see also: Italian Supreme Court, Civil Section, Judgment No. 6598 of March 7, 2019).

According to the Italian Supreme Court, compensation is only possible if the unfaithful conduct has caused harm to the psychological well-being, personal dignity, or public image of the betrayed spouse. This may occur, for example, when:

• The infidelity is made public, subjecting the injured spouse to humiliation that damages their dignity and reputation.
• The infidelity causes severe psychological distress or a significant decline in the injured spouse’s quality of life, supported by medical evidence and documentation.
• The infidelity results in financial loss, such as medical expenses for treating conditions like stress or depression caused by the betrayal.
• The unfaithful spouse’s behavior is particularly offensive or defamatory, such as an extramarital affair openly displayed in the workplace or accompanied by defamation.

Conversely, if the harm suffered does not exceed the threshold of ordinary emotional distress associated with the end of a marriage, compensation claims are unlikely to succeed. Courts have clarified that Article 2059 of the Italian Civil Code does not allow for compensation for non-pecuniary damages arising from mere emotional distress but only for violations of constitutionally protected fundamental rights.

Thus, anyone seeking compensation for marital infidelity must provide concrete evidence demonstrating that the betrayal had serious and objectively significant consequences on their personal or financial well-being.

How to prove damage from infidelity?

One of the most critical aspects of compensation claims for marital infidelity is the burden of proof. The injured spouse must prove that the betrayal caused consequences warranting compensation. Judicial precedent does not automatically recognize the right to compensation but requires that damage be concretely and unequivocally demonstrated.

According to the Italian Supreme Court (Judgment No. 6598 of March 7, 2019), obtaining compensation requires proof of:

• The existence of the infidelity, supported by documentary evidence (e.g., messages, emails, photos, witness testimony). However, mere proof of infidelity is insufficient for compensation.
• The harm suffered, which must be tangible and verifiable. For example, claims for psychological damage must be supported by medical certificates or expert reports confirming the onset of a disorder due to the betrayal.
• The causal link between the infidelity and the harm suffered, meaning that the violation must be directly attributable to the unfaithful spouse’s conduct. If the damage could have resulted from other factors, the compensation claim may be dismissed.

Proving damage is particularly complex in cases of harm to dignity or reputation. For example, if infidelity was publicized on social media or used to defame the injured spouse, evidence such as screenshots, newspaper articles, or witness testimony can help demonstrate the negative impact on their public image.

Finally, statements from individuals close to the injured spouse, such as friends and family, may be used as supporting evidence, particularly in cases where psychological harm has had evident repercussions on the victim’s daily life. However, courts tend to prioritize objective evidence, such as medical reports and expert testimonies from healthcare professionals, to avoid claims based on subjective perceptions.