It is a common view, typical of our society and its monogamous culture, to consider that a good relationship shall always be exclusive and preserved from any possible interference from any betrayal or adulteress. In the Italian civil code, this view is perfectly represented by the article 143, which states that “marriage foresees the mutual obligation of fidelity, moral and material assistance, cooperation in the interest of the family and cohabitation”. Therefore, fidelity is seen as an essential obligation deriving from marriage, even if in the common experience, the Courtrooms are full of divorce claims based on unfaithfulness. Indeed, the technological era where we live in makes it harder than ever to resist all the possible temptations and to be in compliance with common morals (and with art. 143!).
However, in terms of law, it is not easy to ascertain when a violation of fidelity occurs. This is because such a concept is inevitably influenced by subjective valuations: whilst, for someone, even a casual sexual intercourse might not be deemed as such, for others even a simple flirt may irredeemably break the fiduciary ties of a couple. In separation and divorce proceedings, proving that the violation of the fidelity obligation has caused the relationship’s termination may lead to a legal separation sentence stating (through the so-called “addebito”, an express attribution of responsibility) that the negative consequences arising from the separation (especially the economic ones) will be borne by the unfaithful spouse.
Given such premises, when may the Courts ascertain that the fidelity obligation has been violated? Would it be necessary for the unfaithful spouse to be involved in sexual intercourse, or can this violation even occur in the absence of any physical contact?
A curious answer, which shall alert anyone believing that browsing through dating websites shall be not be deemed as “cheating”, was given by the Cassation court in Italy (Ordinance n. 9384/2018). The Court, in fact, has confirmed an appeal-grade judgment which stated that visiting dating websites to look for strangers, for erotic or relational needs, shall be deemed as an evident violation of the fidelity obligation foreseen by art. 143, second paragraph, of the civil code. Therefore, fidelity does not only mean exclusivity in sexual intercourse, but also loyalty, solidarity and sharing.
The Cassation Court therefore shared an extensive interpretation of the concept of fidelity breach and compared the so-called “physical betrayal” with the “virtual” or “mental betrayal”, realized with the sole exchange of virtual messages. In the specific case, the violation of art. 143 was ascertained on the basis of the sole fact a husband had subscribed to a dating website, where he cultivated virtual contacts with strangers. This is because such conduct shall be deemed as unfair towards the other spouse or, in juridical terms, as a “circumstance objectively capable of compromising the fiduciary ties between the spouses and to cause the matrimonial crisis at the origin of separation”.
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