Italian Separation and adultery: liability profiles
Along the years, Italian Law has carefully observed the adultery phenomenon and its consequences within familiar environment. According to the art. 143 Civil Code, the institution of marriage implies several duties and responsibilities such as spouses’ mutual fidelity obligation, moral and economic assistance, collaboration and cohabitation.
In some cases, the adultery might be the main cause of ending of the marriage. Subsequently, the infidelity may be cause for separation in the event the judge assesses that the failure to comply with familiar duties has determined marriage crisis. In these cases, Italian Law recognises a substantial right to compensation. In fact, marriage duties including collaboration, cohabitation, fidelity and moral/economic assistance are authentic judicial commitments.
In the event the infringement of marriage duties leads to the infringement of constitutional rights, then you are entitled to ask for compensation of damages according art. 2059 Civil Code. Then, regardless the infidelity caused the separation; the betrayed spouse has right to compensation. Specifically, the compensation may take place only in the event of constitutional right infringement such as the right to human dignity. In addition, the violation shall be offensive, persistent and insulting.
For these reasons, the Italian Court of Cassation has confirmed the right to compensation for the betrayed spouse provided that the violation was major and it goes beyond tolerability threshold. This same decision has been reconfirmed in another case where the husband has been betrayed while the wife was hiding her pregnancy. However, a hidden pregnancy alone does not constitute a legal base for compensation. Contrarily, the husband needed to demonstrate that his former wife was aware of the pregnancy. To conclude, adultery might be cause for separation and for separated compensation rights. However, the party needs to prove the offence was severe and beyond tolerability.