An alleged secret infidelity, a cheating spouse and the question of who pays the costs of the detective hired by the cheating spouse.

The Supreme Court (11.08.2015, 4 Ob 100/15g) awarded the cheating spouse full compensation for the costs of the detective as damages. Surprisingly, in the case in question, these costs are not to be borne by the unfaithful spouse, but by their extramarital lover (the “marriage disturber”).

According to the Supreme Court, the duty of marital fidelity exists not only for the entire duration of the marriage, but until the divorce becomes final. Accordingly, the disturber of the marriage is liable for detective costs even if the adultery could no longer lead to the breakdown of the marriage because the marriage had already broken down. Such costs are also to be reimbursed by the disturber of the marriage outside of divorce proceedings and not only by the (unfaithful) spouse.

The following requirements must be met in order to successfully assert the costs incurred by the detective in court:

1. marital disruption – cause:
First of all, the commissioning of a detective requires a so-called “legitimate motive approved by the legal system.” “The case law grants a spouse whose marriage is disturbed by their partner’s relationship with a third person that is contrary to the marriage an interest in obtaining clarification of the facts, irrespective of the subsequent initiation of legal proceedings.” (see Zak 2016/46, Dr. Andreas Gerhartl “Reimbursement of detective costs”)

2. unlawfulness and fault:
Marriage is considered to be an absolutely protected legal right vis-à-vis third parties. The (conscious) participation in the violation of the resulting obligations can already be unlawful.
The marriage must be respected until its legally binding dissolution. The claim for damages therefore arises even if the conduct of the person who disturbed the marriage is no longer causal for the breakdown.
At the same time, knowledge of the other party’s marriage is a prerequisite for a claim for compensation for the detective costs incurred.

3. expediency:
Finally, as a corrective, it should be noted that the assignment of a detective must not be superfluous, hopeless, recognizably inexpedient or an abuse of rights from the outset.

Consequently, not only spouses, but also external third parties (perpetrators of adultery) should think about possible costs or negative consequences of their complicity in adultery.