According to Italian Law, the art. 143 Civil Code establishes spouses’ duties and responsibilities. In details, spouses are expected to protect and achieve the best interest of the family while also providing a contextual moral and economic support. Additionally, article 143 also imposes a further mutual obligation: fidelity.
In the context of a judicial separation, the Judge needs to assess whether or not spouses have respected previous duties; including fidelity. Not always infidelity may be cause for separation. In fact, the Judge shall assess whether or not the infidelity was the main cause of the familiar crisis or it occurred only after the couple was already in crisis. There is a robust lists of precedents that confirm that spouses’ infidelity was not the cause for separation because both spouses were already in crisis when the infidelity occurred. In other word, fidelity might be cause for separation only when it determined the familiar crisis.
Furthermore, the Italian Cassation Court has confirmed the right to compensation for the betrayed spouse. In fact, the infringement of familiar duties and responsibilities may constitute a tort. In fact, those duties are not only moral instances but, on the contrary, they constitute legal obligations. Subsequently, spouse has a legal expectation that other spouse will always comply with familiar obligations. This expectation hence constitute an authentic subjective right.
However, in order to recognise liability and subsequent compensation, the infidelity had to provoke an unfair damage and there must be a casual link between the conduct and the damage. Specifically, the Judge has to assess whether or not infidelity has caused a damage to spouse’s health. In addition, it is important to highlight a contrasting approach regarding right to compensation for infidelity and separation procedure. In fact, the Cassation Court confirms that even though the infidelity act did not cause the separation, it can still be cause for compensation. On the contrary, other approach is that there cannot be any compensation if the infidelity did not cause the separation.
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