Marital Infidelity and the Request for Fault in Separation

Discovering infidelity is one of the most painful and destabilizing moments in a couple's life. Beyond emotional suffering, the betrayed spouse often wishes to have the other's responsibility for the end of the marriage recognized, not only on a moral but also on a legal level. As a divorce lawyer practicing in Milan, I often find myself having to manage the delicate issue of separation with fault. It is crucial to understand that the request for fault should not be driven by a simple desire for revenge, but must be based on solid legal grounds and a strategic assessment of the real benefits that can be derived from it.

When is it Possible to Obtain Fault for Infidelity

In our legal system, attributing fault for separation means a judicial finding that the end of the marital union is attributable to one of the spouses due to the violation of duties arising from marriage, including the duty of fidelity enshrined in Article 143 of the Civil Code. However, jurisprudence is very clear on a crucial point: infidelity must be the triggering cause of the marital crisis, meaning the exclusive reason that has made the continuation of cohabitation intolerable. If the infidelity occurs in a marital context that is already irremediably compromised, where the spiritual and material communion between the spouses had already ceased, the judge may not pronounce fault. Therefore, it is necessary to demonstrate the direct causal link between the infidelity and the breakdown of the bond.

The Legal and Economic Consequences of Fault

Obtaining a judgment of fault entails specific consequences, mainly of a patrimonial and succession nature. The spouse to whom the separation is attributed loses the right to receive a maintenance allowance, potentially retaining only the right to alimony if they are in a state of need and unable to support themselves. Furthermore, they lose succession rights with respect to the other spouse. It is important to emphasize that fault does not automatically affect decisions regarding child custody, which follow the principle of the child's best interest, unless the parent's conduct has prejudiced the well-being of the offspring.

The Bianucci Law Firm's Approach to Cases of Infidelity

At the Bianucci Law Firm, the approach to separation with fault is characterized by maximum pragmatism and the concrete protection of the client's interests. As an experienced divorce lawyer in Milan, I carefully evaluate each individual case before recommending a judicial path. A separation case with a request for fault is, in fact, procedurally longer, more complex, and more expensive than a consensual separation, as it requires in-depth investigation to prove the contested facts. My strategy consists of preliminarily analyzing the strength of the available evidence (messages, testimonies, investigative reports) and balancing the emotional and economic costs of litigation with the potential benefits achievable. The goal is to guide the client towards the solution that guarantees the best possible outcome, avoiding sterile legal battles if there are no grounds for concrete economic or procedural advantage.

Frequently Asked Questions

Is infidelity alone enough to obtain fault for separation?

No, the mere historical fact of infidelity is not sufficient. It is necessary to prove that the infidelity was the efficient and determining cause of the marital crisis. If the infidelity occurred when the couple was already de facto separated at home or in deep crisis for other reasons, the judge may reject the request for fault.

What evidence is valid to prove a spouse's infidelity?

Various types of evidence can be used to prove infidelity in court, provided they are acquired legally. These include testimonies from third parties, photographs, messages (SMS, WhatsApp, emails), or reports prepared by authorized private investigators. It is crucial that the collection of evidence does not unlawfully violate privacy, otherwise, it may be unusable in court.

Does the unfaithful spouse lose custody of the children?

Generally no. The attribution of fault for separation concerns the relationship between the spouses and does not directly affect parental capacity. Child custody, usually shared, is decided solely by evaluating the best interests of the minors. Infidelity would only be relevant if the manner in which it was conducted caused direct prejudice to the children's psychophysical balance.

Is it always advisable to request fault if you have proof?

Not always. It is necessary to assess whether the unfaithful spouse would still be entitled to a maintenance allowance based on income. If the unfaithful spouse is economically stronger and therefore would not be entitled to receive money anyway, requesting fault could only lead to longer court proceedings and increased legal costs without bringing concrete economic benefit, apart from moral satisfaction and the issue of succession rights.

Request a Case Evaluation in Milan

Facing a separation caused by infidelity requires clarity and an impeccable legal strategy. If you are considering proceeding with a request for fault, it is essential to preliminarily analyze your evidentiary and financial situation. Contact Avv. Marco Bianucci for a consultation at the office located at Via Alberto da Giussano, 26 in Milan. Together, we will evaluate the most suitable path to protect your rights and your future.