Marriage breakers are obliged to pay the costs of private detectives hired by cheating spouses. In its decision on 8 Ob 112/21k, the Supreme Court recently ruled that liability for detective costs is limited to the extent that the surveillance must not be “manifestly superfluous” or “inappropriate”. The defrauded husband therefore had to bear the costs of a second private investigator himself.

The husband had his wife observed by a detective from October 2018 to May 2019, who was able to document the wife’s unmarried behavior. In February 2019, the wife filed for divorce, whereupon the husband filed a counterclaim. At the beginning of July 2019, the husband commissioned another detective agency to monitor his wife “in order to have proof that they were only lying about the divorce”. During the total of 24 observations by the second detective agency, the wife was only observed on two days in the passenger seat of the marriage disturber. The husband finally sued the interferer for compensation for the costs of the second surveillance phase.

Irrespective of the success of individual observations, the party disturbing the marriage must reimburse all detective costs that the spouse whose rights have been infringed could consider necessary according to objective standards in order to obtain certainty about the behavior of his or her spouse. (RS0022959) However, this claim for compensation is limited by the fact that the monitoring must not be manifestly superfluous or recognizably inappropriate. As the husband was already aware of his wife’s affair due to the documentation of the first detective agency, the courts qualified the commissioning of a further detective company as manifestly superfluous. It was not explained why the deceived spouse should have a legitimate interest in reporting the wife’s unmarried behavior again. The spouse must therefore bear the costs of the second detective agency in this case.

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