Since adultery was officially decriminalized in May 2020, many people's first reaction is: "Does this mean that infidelity no longer carries any responsibility?" In fact, the answer is not so simple. Although adultery is no longer considered a criminal offense, it does not mean that the act of infidelity is justified or completely exempt from liability. In the face of spousal infidelity, the victim can still pursue legal action through civil litigation to hold both the spouse and the third party accountable, claiming that their actions violated the spousal rights and seeking emotional damages. However, before filing a lawsuit, you may have many questions: Can you file a lawsuit without evidence of intercourse? Can you still seek compensation after divorce? Can you sue the third party if they claim not to have known that the person was married? This article will provide a comprehensive legal analysis of the civil responsibilities related to infidelity, helping you fight for your rightful rights and dignity.

Clarifying the Meaning of Decriminalizing Adultery

Definition of Adultery

Before decriminalization, the crime of adultery was specified in Article 239 of the Criminal Code: "A person who commits adultery while having a spouse shall be punished with imprisonment for no more than one year. The same applies to the person with whom the adultery is committed." Adultery refers to a married person engaging in consensual sexual intercourse with someone other than their spouse, meaning a physical between sexual organs. If there is no actual sexual intercourse, even intimate acts such as hugging, holding hands, kissing, or sending suggestive messages did not constitute adultery under the old criminal law.

Why Decriminalize Adultery?

The original purpose of the adultery law was to deter spousal infidelity through criminal punishment, aiming to protect the traditional institution of marriage and maintain family stability. However, as society evolved and ideas progressed, the Constitutional Court, in its Interpretation No. 791, highlighted several unconstitutional aspects of the adultery law, including the protection of individual sexual autonomy, the substantial gender inequality it caused, and the alignment with international legal trends. Additionally, the difficulty in providing evidence led to the decision to decriminalize adultery in May 2020.

Decriminalization of Adultery Does Not Justify Infidelity

Although adultery is no longer punished criminally, this does not mean that infidelity is now "innocent" or "socially accepted"! Adultery may still violate the marital duty of loyalty that both spouses are obligated to uphold, making it a "tort" under civil law. Therefore, victims can still pursue civil litigation to hold their spouse or a third party accountable for the emotional damages and harm caused to the marriage.

What is the Infringement of Spousal Rights?

Definition of Spousal Rights

Article 195, Paragraph 1 and Paragraph 3 of the Civil Code state:"Anyone who unlawfully infringes on another's body, health, reputation, freedom, credit, privacy, chastity, or any other personal legal rights, and the circumstances are serious, may be entitled to request compensation for the corresponding amount, even if no property damage is involved. The provisions of the preceding two paragraphs apply in cases of unlawful infringement on a person's identity rights based on parental, child, or spousal relationships, and when the circumstances are serious."

Spousal rights, as protected underArticle 195 of the Civil Code, refer to the "personal legal rights" enjoyed by both spouses, including rights and obligations such as the authority to manage daily affairs, mutual support, cohabitation, loyalty, and trust. Any third-party interference in the marriage, which disrupts the harmony of the couple’s life, regardless of whether sexual relations occur, could potentially constitute an infringement of spousal rights.

Standards for Judging Infringement of Spousal Rights and Behavior Patterns

Court rulings have indicated that "infringement of spousal rights does not require sexual intercourse; as long as the relationship between the parties has gone beyond the bounds of ordinary friendship and is sufficient to shake the foundation of the marriage, it can constitute civil tort liability." In other words, unlike the previous adultery laws, which required proof of "sexual intercourse" to establish the offense, the injured party in a spousal rights infringement case only needs to prove that the cheating spouse engaged in the following behaviors with a third party outside the marriage:

1. 互Sending ambiguous messages such as "wife/husband," "I miss you," or "I love you."

2. Intimate actions such as holding hands, hugging, touching, or kissing.

3. Entering private spaces together, such as motels, hotels, etc.

4. Any other actions that go beyond general social relationships and are sufficient to undermine marital trust and the foundation of cohabitation.

These situations may be judged by the court as significant acts of infidelity, and the injured spouse can file a lawsuit and seek compensation for damages related to "psychological, personal, and marital dignity" violations.

Legal Responsibility for Infringement of Spousal Rights

According to Articles 184and 195 of the Civil Code, if a person unlawfully infringes on the rights of another or intentionally causes harm through methods that violate public morals, resulting in psychological or emotional suffering, the victim may seek non-property damage compensation (i.e., emotional distress damages). In essence, infidelity is still considered a destruction of the marriage institution, but the form of legal responsibility has shifted from "criminal punishment" to "monetary compensation."

Who Can You Seek Compensation From?

1. Filing a Lawsuit Against Both the Cheating Spouse and the Third Party

Infringement of spousal rights is considered a "joint tort," meaning that both the cheating spouse and the third party involved in the marriage are jointly liable for destroying the harmony of the marriage. If the victim wishes to expose the full truth of the affair and seek a higher compensation amount, it is advisable to file a lawsuit against both parties. This approach can help the judge assess the overall severity of the tortious act.

2. Filing a Lawsuit Against the Third Party Alone

Some people, due to the long emotional history with their spouse and their deep feelings, may find it difficult to forgive the spouse and thus choose to file a lawsuit only against the third party. This is still a legal exercise of their rights, and the court will not dismiss the lawsuit for this reason. However, if the cheating spouse is not included in the lawsuit, the court may slightly reduce the compensation amount, considering that "some of the responsibility has been voluntarily assumed by the spouse."

Can You Sue if the Third Party Claims They Didn't Know the Person Was Married?

In practice, the court typically applies the "knew or should have known" standard to determine whether the third party was aware that the person was married. "Knew" means that during the course of their relationship, there were clear clues or facts indicating that one party was married, such as mentioning "wife," "children," or "married for many years." If the parties continue to develop an ambiguous relationship, even without sexual intercourse, it can still constitute an infringement of spousal rights.

"Should have known" refers to situations where the two parties have a long-term relationship or have traveled together, but the third party has not made any effort to verify the other person's marital status. In this case, if the third party claims they didn't know the person was married, the court may consider this as "negligence" and may not accept the defense.

Can You File a Lawsuit for Compensation After Divorce if You Discover Infidelity?

The answer is yes, because divorce does not eliminate the legal responsibility for infringing on spousal rights. As long as the infidelity occurred during the marriage, you can still seek compensation from the cheating spouse and the third party. However, you must be aware of the legal time limits:

1. You must file a lawsuit within 2 years from the time you become aware of the infringement and the identity of the perpetrator.

2. Regardless of whether you know the perpetrator, you must file a lawsuit within 10 years from the occurrence of the infringement.

Even if you discover the infidelity after the divorce, as long as you file the lawsuit within the time limits mentioned above, you can still claim that your spousal rights were violated and seek compensation.

No More Endurance, The Law is Your Support

When faced with the betrayal and hurt caused by a partner, many victims often choose to silently endure, even questioning whether they still have the right to seek justice. However, even though adultery has been decriminalized, the law does not allow those who destroy marriages to escape consequences. If you are facing both emotional and legal struggles, please stand up bravely and seek professional legal assistance. Through legal channels, hold the responsible party accountable and restore your justice and dignity.

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