The end of a marriage is usually not pretty. Of course, this is not a purely Austrian phenomenon. However, Austria is one of the few countries in Europe that still applies the principle of fault. This also means that divorce proceedings are not only emotionally costly for those affected, but also financially. If a person has committed serious marital misconduct that has led to the breakdown of the marriage, this can result in many years of financial disadvantages. Especially when it comes to post-marital support. One is entitled to receive adequate post-marital maintenance if the marriage is divorced due to the predominant fault of the other person. Especially if the “guilty party” earns considerably more than the blameless spouse, it can be financially “worthwhile” to conduct contentious divorce proceedings. In this case, it may be helpful to gather evidence, for example through a private investigator. 

Infidelity as serious marital misconduct

There are so-called marital duties within a marriage. One of these is the mutual duty of fidelity. The fact that infidelity, i.e. cheating, is a serious marital offence is even stated in the law. Although cheating is no longer an absolute ground for divorce and does not always lead to the cheated spouse winning the divorce proceedings, evidence of the other’s infidelity is certainly helpful. It is often the case that one has suspicions about extra-marital activities of one’s partner, but no certainty. When asked about this, most people deny illegitimate affairs. For this reason, people often decide to hire private investigators.

Even though many people are aware that having an affair is not an advantage in divorce proceedings, it is often not known that the suspicious partner may even be entitled to claim compensation for the detective’s costs.

Claiming private investigator costs from the partner?

With regard to the principle of fault mentioned above, it may make sense to seek clarification from a private investigator in cases of suspected infidelity on the part of the other partner. A detective’s report can be presented as evidence in court. However, the services of detectives are often expensive. Under certain circumstances, it is possible to get the reasonable costs reimbursed by one’s partner. These costs can either be claimed in the course of the divorce proceedings or sued for as a claim for compensation. In order to be able to claim the detective’s costs from the unfaithful spouse, the detective’s observation must at least partially confirm the infidelity or the suspected marriage-disrupting behaviour. In other words, if a detective finds nothing at all, one cannot claim the costs for him. Pointless, futile or harassing investigations cannot be charged to the other spouse either. If, for example, the spouses have told each other for years that they are no longer interested in the marriage and the marital relationship has therefore been dissolved by mutual consent for a long time, expensive investigations merely for the purpose of preserving evidence could be an abuse of right

Is it possible to make the affair pay for the Private Investigator?

In some cases, it is even possible to demand the detective’s costs from the marital offender, i.e. from the affair. In order for the affair to be liable for the detective’s costs, it is basically necessary that the marriage was known to the affair. The existence of a sexual relationship is not a mandatory prerequisite for any compensation liabilities on the part of the third party. In exceptional cases, even intimate friendly contact can trigger a third party’s liability for damages.

Case law also recognises that it is first and foremost the duty of the married person not to enter into relationships that are contrary to marriage. Third persons are therefore under no obligation to investigate whether the new lover might be married.

This Blogpost was published for the first time at “The Standard”. 

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