What is a realistic way to overcome divorce and pain caused by a spouse's infidelity?

It is very difficult to convert the human pain index into numbers. However, according to the ‘Holmes-Rahe Scale’ created by renowned American psychiatrists Holmes and Rahe to convert human stress into a score, the number one stress level experienced by humans is ‘death of spouse’, followed closely by ‘divorce from spouse’ and ‘discord with spouse’. In other words, if you experience divorce and discord with your spouse at the same time, you will experience the highest level of mental pain that a person can experience.

The most common case in which a person experiences these terrible experiences at the same time is ‘when a divorce occurs due to a spouse’s infidelity.’ When you become aware of your spouse's cheating, you have two choices: the first is to ‘forgive for now and live with it’, and the second is to ‘immediately file a divorce suit and claim compensation for incest’. The person who committed adultery is awarded alimony, and the spouse is divorced by claiming alimony based on fault.

In practice, the reality is that the second case is much more common than the first case. What is more unfortunate is that for families with children, the peaceful family is broken up by an adulterous woman or an adulterous man, and as a result, the child is forced to grow up in an unstable environment. Currently, under Korean law, it is impossible to criminally punish perpetrators of family breakdown. This is because the adultery system, which stipulated criminal punishment, was abolished a long time ago.

In this situation, if you secretly look at your spouse's cell phone in order to find evidence of his or her affair, the laughable situation will occur where the ‘victim of the most ruined’ becomes a ‘perpetrator of information and communication network infringement’ and is subject to criminal punishment. As a result, the only option left is to receive ‘almonia’ through a civil lawsuit, and even this is very rare in being cited for the entire amount claimed. In order to achieve the result of ‘all wins,’ the evidence of ‘cheating’ must have been completely collected in a legal way and the adulterer must be aware of the fact that his or her spouse is married. Additionally, the psychological damage caused by the misconduct must be proven with ‘objective data.’

If all of this is done perfectly, a significant amount of alimony can be received according to the Supreme Court precedent that states, ‘A third party’s act of infringing on the marital life, which is the essence of marriage, by engaging in unfaithful acts with one of the couple, or interfering with its maintenance and infringing on the couple’s rights as a spouse, thereby inflicting mental pain, constitutes an unlawful act (Supreme Court decision 2013M2441, May 29, 2015).’

In addition, the unfaithful act specified in Article 840, Paragraph 1 of the Civil Act, which stipulates grounds for divorce, includes adultery, but is a broader concept than that, and includes any act that is disloyal to the couple's duty of chastity to the extent that it is difficult to continue the marital relationship according to social norms, even if it does not amount to adultery (Supreme Court decision 88m7, May 24, 1988). In addition, whether an act is illegal must be evaluated by taking into account the degree and circumstances of the specific case (Supreme Court Decision 92M68, November 10, 1992). According to this legal principle, the amount of alimony is recognized, and it is determined whether the amount is a full or partial amount.

Therefore, it can be said that ‘collection of evidence’ is the key to lawsuits for compensation for incest. If illegality is revealed at the evidence collection stage, even though you are a victim, you may be recognized as a perpetrator and this may be a factor in reducing your compensation. Therefore, it is important for a legal expert to participate in the evidence collection stage from the beginning of the case and legally prove without criminal problems the evidence of misconduct that violated the duty of marital chastity and the circumstances that the adulterer knew whether the spouse was married. In addition, a medical certificate must be submitted to prove that there has been significant psychological damage, so that the ‘full amount claimed’ can be quoted as compensation for damages to the adulterer.

Kim Jan-di, a domestic affairs lawyer at Daeryun Law Firm, advised, “Divorce due to a spouse’s cheating is the sum of the highest pain indexes that humans experience, so it is not easily cured over time, but the ‘realistic’ way to overcome this pain is to take as many legally possible measures against the other party as possible. Therefore, as soon as you are aware of your spouse’s cheating, I hope that you will receive the help of a lawyer to secure legitimate evidence and achieve the best result.”

[Global Epic CP Lee Soo-hwan / lsh@globalepic.co.kr]

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