Pecuniary and Non-Pecuniary Damages in Divorce: Conditions and Calculation

TMK m.174/1 requires three conditions: (i) divorce must be granted; (ii) the existing or expected interests of the claimant spouse must be harmed by the divorce; (iii) the claimant spouse's fault must be lighter than the respondent's. Social security of the spouse counts as an existing interest; rights of inheritance or the economic benefits of common life count as expected interests.

The amount is set by the judge equitably, having regard to the parties' economic and social circumstances, the duration of the marriage and the allocation of fault. It may be paid in a lump sum or as a periodic payment.

TMK m.174/2 provides that a spouse whose personality rights have been violated by the events giving rise to the divorce may claim an appropriate sum from the spouse at fault as non-pecuniary damages. Non-pecuniary damages aim to compensate violations of personality rights.

Adultery, physical or psychological violence, persistent denigration and public humiliation are typical grounds. The amount must be set so as to fulfil the consolation function of money, without becoming an instrument of unjust enrichment.

Under TMK m.178, rights of action arising from the termination of marriage by divorce are time-barred one year after the divorce judgment becomes final. Damages must therefore be sought together with the divorce action, or by separate action within one year of the divorce becoming final.

The competent court is the Family Court. Where damages are claimed together with the divorce, they are decided in the same file.

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.