In Japan, it has been a long-standing legal principle that a person can be sued if they engage in a sexual relationship with a married person. A recent Supreme Court decision looked at a slightly different question, namely whether a suit can also be brought if an affair causes a divorce. This article will examine the details of the case and consider its effect upon the law.

On 19^th February 2019 the Japanese Supreme Court’s third petty bench delivered a decision that dismissed a claim for compensation made against a co-worker of the plaintiff’s ex-wife. The plaintiff was seeking compensation from the co-worker for emotional distress that the plaintiff suffered during his divorce proceedings, which were a result of the plaintiff discovering that his then-wife was having a long-term affair with the co-worker. The Supreme Court’s decision was widely published in the Japanese media, with many people asking the question, “is it no longer possible to sue a cheating spouse’s lover?”

This column will examine the court’s decisions and consider the broader question of how the Japanese courts may respond to similar claims in the future.

Overview of the facts

The plaintiff in the case in question married his wife in March 1994. Although they were living together, the plaintiff often did not return home due to his work commitments. By December 2008 the marriage had become sexless, which was the same time that the defendant in the case commenced working at the plaintiff’s wife’s workplace. A sexual relationship between the defendant and the plaintiff’s wife commenced some time after June 2009. The plaintiff became aware of the affair in May 2010; the wife ended the affair at that time and continued living with the plaintiff.

The wife later moved out of the couple’s home in April 2014 and commenced divorce proceedings in November of the same year. The couple finalised their divorce through negotiation, which became official on 25^th February 2015.

It was after the divorce was finalised that the plaintiff sued the defendant, claiming that he suffered emotional distress from the divorce, which was caused by the defendant’s affair with the plaintiff’s then-wife.

The Supreme Court’s decision

The Supreme Court held that in order to successfully sue for damages in relation to a divorce, it is not enough that the defendant had a sexual relationship with the plaintiff’s spouse. Instead, such a claim will only be successful where it is found that there are special circumstances that forced the married couple to divorce, such as the defendant unduly interfering with the marriage with the intention of causing the couple to divorce.

The events that lead up to a divorce are never the same and depend upon the circumstances of each couple. Further, where a marriage ends in divorce, even if adultery by one of the parties caused the relationship to breakdown and led to the divorce, it cannot be said that the other party to the adultery is automatically liable in tort for causing the couple to divorce. That is because the decision to divorce is usually made by and between the married couple. It seems that this reasoning is the premise for the Supreme Court’s decision in the case in question.

In the case before the Supreme Court, the adulterous relationship was ended at about the time that the plaintiff became aware of it, and there were no other special circumstances in the period leading up to the divorce, so the plaintiff’s claim was dismissed.

What are “special circumstances”?

As mentioned above, the Supreme Court ruled that a claim for damages in connection with a divorce will not be upheld unless it is found that there were special circumstances that forced the married couple to divorce, such as the defendant unduly interfering with the marriage with the intention of causing the couple to divorce. While the court’s decision in this case does not clarify what constitutes such “special circumstances”, the court’s use of the phrase “special circumstances that forced the married couple to divorce” suggests that the range of such special circumstances will be considerably limited. To find out just how limited that will be, we will have to wait for future judgments to decide.

Has it become impossible to sue an adulterer for damages?

The Supreme Court’s decision in this case dealt with the issue of damages in relation to the divorce proceedings, which is an issue that had not been considered in previous cases, so it does not change the principles decided in earlier precedents. In other words, this case dealt with the question of claiming damages against the other party to a spouse’s affair for damages suffered due to a subsequent divorce; this case did not make any ruling regarding damages arising from the act of adultery itself (that is, a person being sued for having a sexual relationship with another person’s spouse).

According to previous cases on the topic, if the act of adultery can be proved, then a claim for compensation arising from the damage caused by the act of adultery will be upheld, even in the absence of the “special circumstances” mentioned in the recent Supreme Court decision.

That raises an obvious question – why didn’t the plaintiff sue for damages caused by the act of adultery in this case? The plaintiff became aware of the affair in May 2010, at which time the affair ended. Article 724 of the Civil Code imposes a three-year limitation period for making a claim in tort, and this period had already expired by the time that the plaintiff considered suing the defendant. It seems that this is the reason for the plaintiff using the divorce as the basis for his damages claim.

Final thoughts

As seen above, the Supreme Court’s decision in this case did not deny the ability to sue a person for committing adultery with a spouse, but it did rule that “special circumstances” will be required to claim for damages for a divorce that was caused by adultery. Therefore, the result of this case does not mean that claims for damages for adultery will be rejected in the future.

Importantly, although it is not an issue that has been given special consideration until now, in a suit claiming damages for adultery, if the plaintiff seeks extra compensation because the adultery caused the plaintiff to divorce, it is possible that the claim for extra compensation will be rejected if the “special circumstances” referred to in the current Supreme Court decision do not exist. Future court decisions on this point will be of interest.

(Translated from the original Japanese)