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2017 (Ju) 1456

2019.02.19
2017 (Ju) 1456
Minshu Vol. 73, No. 2
Judgment concerning whether or not either a husband or wife may claim solatium in connection with a divorce against a third party who committed unchaste acts with the spouse
Case seeking compensation for loss or damage
Judgment of the Third Petty Bench, quashed and decided by the Supreme Court
Tokyo High Court, Judgment of April 27, 2017
Neither a husband nor a wife may claim solatium in connection with a divorce against a third party who committed unchaste acts with the spouse, unless there are special circumstances to recognize that the third party compelled the husband and wife to get divorced by not only committing unchaste acts but also unreasonably interfering with the marital relationship between the husband and wife with an intent to get them divorced.
Articles 709 and 710 of the Civil Code



Civil Code

(Damages in Torts)

Article 709 A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence.



(Compensation for Damages Other than Property)

Article 710 Persons liable for damages under the provisions of the preceding Article must also compensate for damages other than those to property, regardless of whether the body, liberty or reputation of others have been infringed, or property rights of others have been infringed.
The judgment in prior instance is quashed, and out of the judgment in first instance, the part against the appellant of final appeal is revoked.

For the part referred to in the preceding paragraph, the claim of the appellee of final appeal is dismissed.

The total court costs shall be borne by the appellee.
Reason 4 for a petition for acceptance of final appeal stated by the counsel for final appeal, TAKI Hisao

1. In this case, the appellee claimed against the appellant payment of solatium, etc. in connection with a divorce based on tort by alleging that the appellee was compelled to get divorced due to the unchaste acts committed between the appellant and A, who was the appellee's wife, and thereby suffered mental distress.

2. The outline of the facts lawfully determined by the court of prior instance is as follows.

(1) The appellee and A registered their marriage in March 1994 and had their first son in August 1994 and their fist daughter in October 1995.

(2) After their marriage, the appellee and A lived together, but the appellee often failed to return home due to work. Since December 2008, when A joined the company at which the appellant was working, the appellee and A had no sexual relations.

(3) The appellant became acquainted with A at the abovementioned company around December 2008 and started to commit unchaste acts with A from June 2009.

(4) Around May 2010, the appellee found out about the unchaste relationship between the appellant and A. Around that time, A dissolved her unchaste relationship with the appellant and continued living with the appellee.

(5) Around April 2014, taking the occasion of her first daughter’s enrollment in university, A started to live apart from the appellee, and during the subsequent six months, she neither went back to the appellee nor did she get in touch with the appellee.

(6) Around November 2014, the appellee applied for a conciliation with the Kawasaki Branch of Yokohama Family Court for adjustment of the marital relationship against A as the other party, and on February 25, 2015, a conciliation of divorce was reached between the appellee and A.

3. The court of prior instance determined as summarized below based on the abovementioned facts and held that the appellee's claim should partially be upheld.

The marital relationship between the appellee and A was broken and they got divorced due to the unchaste acts committed between the appellant and A, and thus, the appellant is liable for tort due to causing a divorce between the appellee and A. The appellee may claim solatium in connection with a divorce against the appellant.

4. However, the abovementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1) Either a husband or wife may claim against the spouse compensation for damages on grounds that either the husband or wife was compelled to get a divorce from the spouse due to the spouse’s fault and suffered mental distress. In this case, such claim was not made between the husband and wife, but instead, either the husband or wife claimed against the third party who committed unchaste acts with the spouse payment of solatium in connection with a divorce.

The background to a divorce between a husband and wife is not uniform according to various circumstances of a husband and wife, but in either a divorce by agreement or judicial divorce, dissolution of marriage by divorce is a matter which should be decided between a husband and wife, under ordinary circumstances.

Therefore, it is considered that, even if a marital relationship between a husband and wife is broken and they get divorced due to an unchaste act committed between either the husband or wife and a third party, the third party, who committed the unchaste act with either the husband or wife, may be liable for tort due to the unchaste act to either the husband or wife, but would not immediately be liable for tort due to causing a divorce between the husband and wife. It should be said that a third party will be liable for tort due to causing a divorce only when there are special circumstances to recognize that the third party compelled the husband and wife to get divorced by not only committing the unchaste act but also unreasonably interfering with the marital relationship between the husband and wife with an intent to get them divorced.

For the reasons described above, it is reasonable to consider that neither a husband nor a wife may claim solatium in connection with a divorce against a third party who committed an unchaste act with the spouse, unless the abovementioned special circumstances can be found.

(2) When this determination is applied to this case, according to the facts mentioned above, the appellant committed unchaste acts with A, who was the appellee's wife, but such unchaste relationship between the appellant and A had been dissolved around the time when such relationship was discovered by the appellee; the abovementioned special circumstances cannot be found to have existed until the divorce was finalized. Therefore, it should be said that the appellee may not claim solatium in connection with a divorce against the appellant.

5. The determination of the court of prior instance that is contrary to the above contains violation of laws and regulations that obviously affects the judgment. The counsel's arguments claiming this intent are well-grounded and the judgment in prior instance should inevitably be quashed. For the explanations made above, the appellee's claim lacks legal basis, and thus, out of the judgment in first instance, the part against the appellant of final appeal is revoked, and the appellee's claim made with respect to such part should be dismissed.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment.
Justice MIYAZAKI Yuko

Justice OKABE Kiyoko

Justice YAMASAKI Toshimitsu

Justice TOKURA Saburo

Justice HAYASHI Keiichi
(This translation is provisional and subject to revision.)