If both spouses agree on divorce,
they no longer have to enforce each other's duty of fidelity,
so even if one has an affair, it cannot be considered misconduct.
However, if the affair occurred before filing the divorce petition,
it seems possible to secure evidence and claim alimony.
If both parties have clearly expressed their intention to divorce, can meeting another person before the divorce be considered an 'adulterous act'?
On the 12th episode of YTN Radio's "Attorney Jo Inseop's Counseling Room," a story was introduced about a wife, Ms. A, who recently decided to divorce her husband by mutual agreement.
Ms. A began, "We are a couple married for 18 years with one son and one daughter. Two years ago, my husband opened a restaurant far from home, so we have been living as a weekend couple." She added, "Every time he came home, my husband was irritable and worried about money, constantly nagging me and the children, which was really hard." She explained, "Then my husband suggested a mutual divorce, and I agreed on the condition that he give me the apartment we currently live in, 100 million won, and 2 million won monthly for child support."
However, conflicts arose over property division and child support, and they eventually decided to seek a court ruling instead of a mutual divorce. During the divorce lawsuit, Ms. A accidentally discovered on her husband's tablet PC that around the time they discussed mutual divorce, he was having an affair with the restaurant manager. When Ms. A confronted him, her husband angrily said, "You agreed to the divorce and met another woman afterward, so what does it matter?" Ms. A asked for advice, saying, "What should I do? Should I just go along with the divorce?"
Attorney Shin Goowoon responded, "According to Article 840, Paragraph 1 of the Civil Act (grounds for divorce due to a spouse's adulterous act), 'adulterous act' refers to any act where one party violates the marital duty of fidelity and sexual chastity. It is not necessarily limited to sexual intercourse." As an example, he explained, "There is a Supreme Court ruling that living with someone other than the spouse, even without actual sexual intercourse due to old age or stroke impairing sexual function, constitutes a violation of the spouse's duty of fidelity and is considered an adulterous act."
He continued, "If there is no intention to continue the marriage and both parties have agreed to divorce, it should be understood that there is a mutual intention not to enforce the duties of fidelity and sexual chastity anymore. Courts generally do not consider an affair committed after such mutual agreement as a spouse's adulterous act."
However, in Ms. A's case, he pointed out, "It is difficult to interpret the 'conditional intention to divorce' as tacit consent to having sexual relations with another person." He noted, "The husband's affair may constitute an adulterous act, which is grounds for divorce in court." Therefore, "If there is evidence that the husband and the other woman were having an affair before discussions about mutual divorce or before the divorce petition was filed, Ms. A can claim compensation for emotional damages." Since mutual consent to divorce means the spouses no longer enforce fidelity duties, an affair after that would not be considered adulterous. But in Ms. A's case, the conditional divorce intention does not imply tacit consent to the husband's affair, so it is likely to be regarded as an 'adulterous act.'"
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