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Friendship as marital misconduct?

Friendship as marital misconduct?

Can friendship be marital misconduct? Getting divorced is not a pleasant experience. A divorce is the end of something big. Little help in such a predicament is when the other divorcing half has already found a new love. Many people are aware that a new love prior to a finalized divorce is not an advantage in the divorce proceedings. However, what is usually unknown is that a friendship with another person can also be considered a marital offence.

Principle of Fault

Austria is one of the few countries in Europe that still applies the principle of fault. If a court declares that a person is predominantly at fault and that person earns considerably more than the “innocent” person, this can result in an obligation to pay post-marital maintenance. Infidelity or cheating is no longer an absolute ground for divorce, but the court will still consider what led to the adultery, how the other person behaved, etc. The court may also consider the circumstances of the case. Infidelity does not have to lead to losing the divorce proceeding in every case, but it is not an advantage in any case. In a contested divorce proceeding, the court examines which marital offences have been committed and whether these have led to the breakdown of the marriage.

What is marital misconduct?

Martial offences are acts or omissions that go against the essence of marriage and the marital duties associated with it.

It is understood that a behavior, which would also cause complete estrangement in a generally understanding person from the couple’s environment constitutes a “grave” marital offence. The law mentions the following exemplary marital offences: adultery as well as the infliction of physical violence or severe mental cruelty. Physical violence is a no-go, but so is the infliction of psychological terror, continuous insults, degradations, etc.

What about friendship as marital misconduct?

Time and again, people insist with utter conviction that their partner has no reason to complain because nothing “physical” has happened with the third party. However, there is a lack of awareness that it can also be problematic to spend regular Netflix evenings at a “friend’s” place, with one’s car parked in plain view of the neighbors.

Spouses must refrain from any behavior that could create the objective impression of being an “adulterous relationship”. Friendly interactions with a person of the opposite sex are generally not a breach of the marital duty of loyalty. However, such a friendship may constitute a form of marital misconduct if it gives the impression of an adulterous relationship, e.g. if one spouse conceals the friendship from the other despite the fact that it goes beyond the normal extent. Also disclosed and non-secret friendships can be considered a marital offence. This is especially the case, if a partner rejects this friendship, but the other keeps it up anyway and if the friendship is likely to alienate the spouses from each other or if it further intensifies an existing alienation.

Only sexual loyalty?

On 22 June 2021, the OGH (Austrian Supreme Court of Justice) confirmed in 1 Ob 2/21g that even purely “friendly” relations with a third party can be a marital offence. In this case there were arguably also other issues – the husband kept a list of marital sexual intercourse to be able to prove in case of divorce that the wife had not been sufficiently available in this respect. The wife kept her own calendar (different from the husband’s) and allegedly encouraged the husband to commit suicide. Both eventually formed “friendships” outside of the marriage.

In general, spouses must arrange their marriage in a consensual way and according to constant jurisdiction it does not only depend on whether a relationship with a third party was sexual or platonic, after all.

In conclusion, it can be said that the marital duty of loyalty is not limited to the sexual sphere. The assurance that “nothing really happened sexually” does not necessarily provide legal protection in divorce proceedings. A friendship as marital misconduct is something people need to be aware of. This is particularly consistent because it regularly will not be possible to prove what did or did not happen behind closed doors, even with the help of detective reports.

This article has been published at DerStandard


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