Divorce on the Ground of Adultery — Special Ground under TMK m.161

Adultery is the voluntary sexual intercourse of a married person with another person other than his/her spouse. Mere flirtation, emotional closeness or online correspondence does not itself constitute adultery; however, these may amount to wrongful conduct relevant in a divorce action based on the breakdown of the marital union under TMK m.166/1.

As direct evidence of intercourse is rarely available, the Court of Cassation's settled case law accepts that hotel records, photographs, messages, witness statements and strong presumptions drawn from the ordinary course of events may be sufficient.

Under TMK m.161/2, the right of action for adultery lapses six months after the entitled spouse learns of the ground for divorce and in any event five years after the act of adultery. These are statutory time bars: they cannot be suspended or interrupted.

If the action is not filed within these periods, divorce cannot be sought under TMK m.161; however, the same facts may be assessed under TMK m.166/1.

TMK m.161/3 sets out an important rule: the forgiving spouse has no right of action. A spouse who, after learning of the adultery, chooses to continue the marriage — returning to the common dwelling or resuming sexual relations — may be considered to have forgiven. Forgiveness may be express or inferred from conduct.

If divorce is granted on the ground of adultery, the assessment of fault may affect claims for damages and spousal support. As regards the matrimonial property regime, under TMK m.236/2 the judge may equitably reduce or extinguish the share of the spouse at fault in the residual value.

In family-law matters, the legal assessment is made by taking into account the fault of the parties, the best interest of the children, their economic circumstances, and the lawfulness of the evidence. Message records, witness statements, bank transactions, medical reports and police reports become effective only when submitted in proper form.

Claims for divorce, support, custody, compensation and division of matrimonial property may produce independent outcomes. The petition must therefore clearly set out which claim is based on which facts and which evidence.

In disputes concerning children, the court takes into account the child's physical, emotional, educational and social needs rather than the parties' assertions. Social-investigation reports, school arrangements, health condition and the parents' communication style play an important role in the court's assessment.