Can a cheated spouse claim detective costs if he or she already knows about his or her spouse’s extramarital affair?

The question of whether detective costs are to be reimbursed in the context of divorce proceedings – and if so, by whom – regularly occupies the courts.

Recently, the Austrian Supreme Court (Oberster Gerichtshof) had to deal with the following facts:

On June 14, 2019, the plaintiff learns of her spouse’s extramarital affair with the defendant. She then confronts her husband, who confesses his marital transgressions. One day later, he moves out of the marital home and has been living separately from the plaintiff ever since. The two spouses agree to undergo couples therapy. The spouse wants to achieve a separation that is as free of escalation and friction as possible; for the plaintiff, the goal of therapy is to restore the relationship. The plaintiff makes it a condition that the spouse immediately end his extramarital relationship with the defendant and move back into the marital home. Confronted with this, the spouse tells the plaintiff that he will end the relationship with the defendant when he meets with her on June 21, 2019. The plaintiff hires a detective to verify this. The detective reports that the spouse has not ended the relationship. When the plaintiff confronts the spouse with the detective’s findings, the spouse states that he had become weak and had not ended the relationship but has agreed to have no more contact with the defendant. Again, the plaintiff has a detective verify this. Again, the detective reports that the spouse has been seeing the defendant. The defendant had known from the beginning that the spouse is married to the plaintiff. Since March/April 2019, the defendant has regularly told her that he wants to separate from the plaintiff. Until after the second observation, the spouse did not indicate to the defendant that he wanted to resume the relationship with the plaintiff. Rather, he told the plaintiff that he would complete couples therapy with the goal of ending the marital relationship with the plaintiff as smoothly as possible.

Course of the proceedings

The first and second instances rejected the claim for reimbursement of the detective costs. The reason given was that the plaintiff was already aware of her spouse’s unfaithful extramarital relationship before the detective was hired, and therefore no observation by a detective was necessary for clarification, and the detective was not hired for this reason. The defendant was therefore not liable because the plaintiff had wanted to check whether the promises made to her by her spouse had been kept. The defendant was not involved in this agreement at all.

Legal assessment by the Supreme Court

In its legal assessment, the Supreme Court referred to its previous case law and stated that the third party must reimburse all monitoring costs which the cheated spouse could consider necessary according to objective standards in order to obtain certainty about the spouse’s conduct and which are justified according to the interest involved. However, the limit is reached where the surveillance is futile from the outset and recognizably inexpedient or superfluous, or where there is an abuse of rights.

The Supreme Court further states that the question of whether this limit has been exceeded can only ever be examined on a case-by-case basis. The plaintiff did not succeed in showing why the lower courts have exceeded their discretionary powers.

Nor, in the Supreme Court’s view, were there any unclear facts in need of clarification, since the plaintiff was already aware of her spouse’s extramarital relationship with the defendant at the time she hired the detective. When the plaintiff issued the first surveillance order, the marriage had already broken down from an objective point of view because the spouse no longer wanted to hold on to the marriage. This also applies to the second surveillance order.

Therefore, there is no connection of unlawfulness between the detective costs claimed by the plaintiff and the defendant. Due to the fact that the marriage had already broken down beyond repair and the defendant had no indications of an intended resumption of the marital relationship with the plaintiff by the spouse, an objectively negligent conduct of the defendant in connection with the detective costs is to be denied, the Surpreme Court concluded.

(Decision OGH 9 Ob 62/20p, 27.01.2021)

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