Consolation money in adultery cases: what does the court consider?

The question that comes up most at the start of a consultation is, in the end, how much you can receive or how much you will have to pay. If you search online, you will find many articles stating amounts with certainty. But there is no legally set table for consolation money (위자료) in claims against an affair partner (상간자). Article 751 of the Civil Act only provides that mental suffering must also be compensated; the amount is set by the court by putting together the various circumstances that come out in the proceedings. Because consolation money is not calculated from receipts, assessments of the same circumstances can differ somewhat from one court panel to another.

The amount in the complaint is a starting point

The amount the plaintiff writes in the complaint is the amount the plaintiff wants. It is common for the judgment to set a lower amount, and that does not mean the plaintiff overreached. There is no reason for the defendant to be frightened into thinking they must pay the amount in the complaint. However, keep in mind that if you do not submit a written answer, judgment may be entered for that amount. Stamp fees and service fees vary with the amount claimed, and the costs of the lawsuit may be shared in proportion to the part you lose, so setting the amount as high as possible is not always the answer.

Circumstances that move the amount

If you read the reasons for judgments, there are circumstances the courts mention again and again. No single one sets the amount; the direction is set by several circumstances together.

The nature of the relationship is also considered. Infidelity can be recognized even if sexual relations are not proven, but the court does not treat a case where only romantic messages were exchanged the same as one where the two lived together or traveled together repeatedly.

• The length of the marriage and whether there are young children
• How long the infidelity continued, how often they met and the nature of the relationship
• How clearly the affair partner knew that the person was married
• Whether the relationship ended after it was discovered, or whether they kept meeting or even mocked the plaintiff
• Whether the infidelity led to separation or divorce

Of these, in practice the attitude after discovery makes a noticeable difference. Records of meetings after being caught, or insulting messages sent to the plaintiff, are grouped together and submitted separately. On the defendant's side, a record showing that contact was cut off on the day of discovery carries the same weight.

Why it is hard to transfer the amount from someone else's judgment

Cases that end in divorce tend to be assessed as causing greater harm than cases where the marriage continues. That does not mean there is no harm when the marriage continues. The suffering of enduring in order to rebuild the relationship is also mental harm. If consolation money has already been received from the spouse, that amount may also be considered in determining the total harm. Psychiatric treatment records are used as material showing that the suffering was great, but the amount is not calculated to increase with the number of visits.

With so many variables, it is hard to plug the amount from someone else's judgment directly into your case. A claim amount is more persuasive when set with supporting materials for each of the circumstances above, and those grounds also become the standard when amounts are exchanged in mediation. The same applies to the defendant. To seek a reduction, rather than simply saying the amount is too high, you need to show with materials which circumstances differ from what the plaintiff claims.