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Attorney Milena Nowicka
What Is Emotional Infidelity?
Can Emotional Infidelity Constitute Grounds for Divorce?
Physical Infidelity vs. Emotional Infidelity – The Approach of the Courts
Can Emotional Marital Infidelity Justify a Divorce Granted on the Exclusive Fault of One Spouse?
Emotional Infidelity and Divorce – What Evidence Should Be Collected?
The term “infidelity” is most commonly associated with the physical sphere. In practice, however, this is not the only form of unfaithfulness that may occur in a marriage. It happens that a husband or wife forms a strong relationship that goes beyond the boundaries of friendship. Even if no physical infidelity occurs, the consequences of such unfaithfulness may be equally severe and may lead to the breakdown of the marriage. For this reason, emotional infidelity is often regarded as justified grounds for divorce.
Emotional infidelity (psychological infidelity) consists in forming a very close relationship with a person other than one’s spouse. This does not refer to friendship, but to an intimate, romantic relationship, albeit without simultaneous physical infidelity.
It is this type of involvement with another person that may contribute to the breakdown of your relationship. This is because your husband or wife is emotionally bonded with their “friend” in a manner that should be reserved exclusively for you.
What might this look like in practice? For example, your spouse confides in a third party about matters previously shared only with you, shows excessive concern for that person, engages in romantic gestures, and maintains very frequent contact with them.
All of this may lead to a weakening of the bond between you, particularly since it usually occurs at your expense. Your spouse becomes emotionally distracted, is no longer the first to turn to you when something difficult or important happens, and no longer spends time of personal significance with you.
It is also worth noting that, in an era of pervasive technology, emotional infidelity may take place even without face-to-face meetings. Sometimes it is limited primarily to phone calls, text messages, and communication via social media platforms.
The grounds for divorce include behaviors that lead to a complete breakdown of marital life.
In practice, this means that all bonds between the spouses must cease to exist: the physical, emotional, and economic bonds. Moreover, the breakdown of these bonds must be permanent, with no prospect of their restoration.
Emotional infidelity can undoubtedly lead to such consequences. Strong emotional involvement with another person usually results in a weakening of the emotional and physical bond between spouses. From there, it is often only a short step to the dissolution of the economic bond as well.
Furthermore, emotional infidelity constitutes a breach of one of the fundamental marital obligations. As husband and wife, spouses undertake to remain faithful to one another, and this obligation is not limited solely to the physical sphere.
Additionally, emotional infidelity is often characterized by the fact that it is more difficult to accept and forgive. In such cases, there is no question of a “one-time mistake,” acting under the influence of alcohol, a “moment of weakness,” or similar justifications. Emotional infidelity requires the building of a strong bond, which in turn demands time and significant commitment. For this very reason, it may decisively contribute to the breakdown of a marriage.
After reading the preceding sections, it will likely come as no surprise that the courts take a similar view. It is not uncommon for an emotional relationship with a third party to lead to the deterioration of relations between spouses, a loss of trust, and ultimately the dissolution of marital bonds.
Although emotional infidelity has been discussed more frequently in recent years, the issue was already addressed by the courts in the previous century. For example, in a judgment of 26 March 1952 (case file no. C 813/51), the Supreme Court held that forming an emotional bond with another person, accompanied by declarations of love and kissing, may constitute a cause of the breakdown of marital life.
Similarly, in its judgment of 16 September 1999 (II CKN 486/98), the Supreme Court indicated that the duty of fidelity does not relate exclusively to the physical sphere. It encompasses any behavior of a spouse that creates the appearance of a breach of the obligation of fidelity.
If your spouse has engaged in emotional infidelity, you may decide to seek a divorce with a finding of fault. This is one of those situations in which it may be worth undergoing a more time-consuming and stressful process compared to a consensual divorce (without a determination of fault).
The reason lies in spousal maintenance (alimony), which you may obtain if you are able to demonstrate that emotional infidelity was the primary cause of the breakdown of the marriage. During the proceedings, the court will, of course, examine whether the permanent and complete breakdown of marital life did not also result from other causes for which you bear responsibility. You must therefore be prepared for the possibility that, if the court finds both spouses at fault, the rules governing maintenance for a former spouse will change significantly—to your detriment.
Accordingly, if in your case there is a likelihood that the court will attribute fault to both parties, it may be worth considering filing a joint request to waive a determination of fault. It should be borne in mind, however, that the court may grant a consensual divorce only if both spouses submit such a request.
f you wish the court to find that the spouse who engaged in emotional infidelity bears exclusive responsibility for the breakdown of your marriage, you must ensure that appropriate evidence is collected.
Useful evidence will be that which allows you to demonstrate that your husband or wife formed an intimate emotional relationship with a third party while simultaneously distancing themselves from you. You may show how frequently they were in contact, the nature of their conversations, what romantic gestures they exchanged, and whether they expressed feelings for one another.
For this reason, evidence commonly relied upon in such cases includes, for example, telephone billing records, photographs and videos of meetings between the spouse and their “friend,” a private investigator’s report, or printouts from social media platforms. Witness testimony from individuals who observed the nature of such meetings is also often of considerable importance.
Much depends on the specific nature of the relationship, the evidence you are able to gather and attach to the divorce petition, and what exactly you wish to demonstrate during the court proceedings. In this respect, a divorce lawyer can be of assistance. Such a lawyer will assess whether emotional infidelity occurred in your case, advise whether to seek a divorce based on the spouse’s fault, prepare the divorce petition and other necessary pleadings and documents on your behalf, and subsequently represent you throughout the entire divorce proceedings.
