As April Fools’ Day approaches - a day traditionally associated with fabricated stories and playful deceptions - it is worth reflecting upon the existence of myths that, over time, acquire the status of truth and ultimately become collective beliefs.
In Family Law, one of the most persistent myths is the belief that, where there has been infidelity, the betrayed spouse will hold an advantage in divorce proceedings.
This belief is so deeply rooted in society that it frequently arises in legal consultations as though it were an unquestionable certainty. “But he/she cheated on me”, people say, as though that fact alone were sufficient to determine rights over the family home, who remains living in it, with whom the children will reside or which spouse will bear greater financial burdens.
However, the Portuguese legal system provides for a different reality.
For many years, divorce in Portugal was based upon a fault-based model. It was necessary to prove that one spouse had breached marital duties - namely the duty of fidelity - in order for such breach to produce legally advantageous consequences for the betrayed spouse within divorce proceedings. The logic was straightforward: there was a guilty party and an innocent party, and the legislator sought to reflect that distinction.
However, since 2008, the Portuguese legislator has removed the concept of fault from divorce proceedings, seeking to dissociate the law from moral judgment. Consequently, divorce today no longer exists to identify blame, but rather to regulate the legal consequences arising from the end of a relationship.
This means that infidelity, although emotionally devastating, no longer constitutes grounds for any advantage within divorce proceedings.
Accordingly, it is not infidelity that determines the division of assets, the attribution of the right to use the family home or the exercise of parental responsibilities concerning the children.
This is because the use of the family home is determined according to criteria such as the needs of each spouse and the best interests of the children; parental responsibilities are decided in light of the principle of the child’s best interests; and the division of assets follows the rules of the matrimonial property regime applicable to the marriage, irrespective of fault on the part of either spouse.
Nevertheless, although infidelity does not confer any advantage within divorce proceedings, this does not mean that it is legally irrelevant in every circumstance.
Indeed, where the breach of the duties of fidelity and respect causes damage to the betrayed spouse - whether moral or financial - such as public humiliation, harm to personal dignity and psychological integrity, or financial losses arising from the need for psychological or psychiatric treatment and the consequent reduction in working capacity resulting from such emotional harm, civil liability may arise. In such cases, the betrayed spouse may bring proceedings against the other spouse seeking compensation for the damage suffered.
However, this does not amount to an automatic advantage arising within divorce proceedings merely because there has been a breach of the duty of fidelity. Rather, it constitutes a legal mechanism designed to protect legally recognised rights, requiring concrete proof of damage and of a causal link between that damage and the conduct of the other spouse.
The distinction is significant, as the legislator did not provide for compensation simply because infidelity occurred, but because such conduct caused legally protected harm.
Perhaps this is one of the greatest changes introduced by the current legal framework governing divorce: the recognition that the end of a marriage does not necessarily require the existence of a guilty party.
This does not mean, however, that infidelity has no impact upon people’s lives. For those who experience it, it may represent a breakdown of trust - both in the other person and in themselves - as well as profound suffering.
This is why, in legal consultations concerning these matters, one of the first tasks is often to dispel the belief that infidelity guarantees an advantage in divorce proceedings, as the betrayed spouse frequently experiences a disconnect between the emotional reality they are living through and what the law actually protects.
Therefore, on this approaching day dedicated to lies and myths, it is important to dismantle this belief. After all, within our legal system, the law does not judge, it protects rights.
