Claims Against the Affair Partner

Legally, a compensation claim against an affair partner (상간자) is a claim for damages based on tort. The case name on the complaint (소장) is usually simply "damages." Even if your spouse's affair is clear, the court separately examines whether the affair partner acted intentionally and whether the marital relationship was actually continuing at the time.

So preparing the lawsuit begins with choosing evidence that matches the requirements the court will check. Even with several photos of the two entering a motel, the claim can be dismissed if there is no evidence that the affair partner knew of the marriage. Conversely, even without evidence of sex, infidelity (부정행위) is recognized if there are enough signs of an ongoing romantic relationship.

Case law does not go so far as to require people to check whether every partner they date has a spouse. So it is up to the claimant to show, with evidence, that the affair partner knew or could have known about the marriage.

The most common evidence is the conversations between the two. Mentions of your spouse's husband, wife or children, pressure to get a divorce, or remarks that contact is difficult because of a family trip all suggest knowledge of the marriage. If there are no such conversations, we gather indirect evidence, such as a messenger profile showing a family photo or a coworker's statement that the marriage was known at the workplace, and organize it by period.

There is no fixed schedule for compensation for emotional distress (위자료). The court looks at the length of the marriage and whether there are children, the duration and extent of the infidelity, how clearly the affair partner knew of the marriage, their attitude after being found out, and the effect on the marriage. If you have already received compensation from your spouse, that amount may also be considered when assessing the total harm.

The amount claimed is set by attaching grounds to these circumstances. Records of the two continuing to meet after being found out, and messages mocking the plaintiff or demanding that the family be broken up, are grouped separately and submitted as aggravating circumstances for the amount.

• Length of the marriage and childcare situation
• Duration, frequency and extent of the infidelity
• When and how clearly the affair partner knew of the marriage
• Whether they ended the relationship or apologized after being found out
• Changes in the marriage, such as separation or divorce

A compensation claim lapses 3 years after the day you learned of the damage and the wrongdoer. Here, "learned" means not when you vaguely suspected, but when you concretely knew who the affair partner was and what kind of relationship it was. If time has passed while you were weighing a divorce, we first need to determine the starting date.

To file a complaint, you need the other party's name and address. Even if you only know a phone number, car plate number or bank account number, after filing the lawsuit their identity can be confirmed through the court's fact inquiry (사실조회) or a document production order (문서제출명령). These procedures also take time, so if little time remains, you need to move quickly.

Even after a judgment, if the affair partner does not pay, you must seek compulsory execution against their bank deposits, salary or real estate. As a rule, one-half of a salary cannot be seized (Civil Execution Act (민사집행법) Article 246), so you may not be able to collect everything at once.

If there is a risk the affair partner will dispose of assets, we consider a provisional attachment (가압류) before the lawsuit. Not every application for a provisional attachment is granted: you must show the need for preservation and are usually required to provide security, so we decide after first looking into the other party's financial situation.