Violation of marital duties and the obligation to compensate the injured spouse

It is well known that Law 61/2008 of 31 October introduced significant changes to the legal regime of divorce. These include the disappearance of the concept of “guilt” in the context of contested divorces.

In fact, and until the entry into force of that law, the judicial proceedings for contested divorces implied, in principle, that one of the spouses should be found guilty or principally guilty of the divorce, in particular because he/she was the one who violated the marital duties. Such a declaration of guilt had significant consequences.

From 2008 on the contested divorce – now called divorce without consent – became a mere consequence of the breakdown of the marital relationship, and it is not already relevant to verify which of the spouses should be found the guilty party.

Therefore, according to the new legal framework, it is important to know if the violation of marital duties has ceased to have consequences?

Can a spouse who has violated any or some of his marital duties – for example, the duty of fidelity – be obliged to indemnify the other spouse for moral damages suffered?

The answer to this question must be affirmative. Indeed, as provided for in Article 1792 of the Civil Code, the violation of marital duties may, in certain circumstances, allow for the payment of compensation on the part of the infringing spouse.

It was thus decided by the Supreme Court of Justice in a judgment of 12 May 2016:

“Thus, at least in the event of a breach of personal marital duties and personality rights of the injured spouse, it is necessary to recognize the admissibility of the right to compensation on the basis of the general terms of civil liability” (Case 2325/12.3TVLSB. L1.S1)”

In the case where this decision was utter, one of the spouses had repeatedly violated the duties of respect, fidelity, cohabitation and cooperation and, with such conduct, caused significant moral damages to his wife who, according to the Court, lost “the joy of living, becoming a sad person, depressed, living closed at home, which led to her being subjected to psychiatric consultations”.

In this case, the court ordered the ex-husband to pay compensation in the amount of €15,000.00 (fifteen thousand euros).

In conclusion, it’s a fact that the breach of marital duties may entitle the injured party to compensation to be paid by its ex-spouse, particularly where such an infringement offends the personality rights of the injured spouse and relevant damages are caused.

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