Claim for consolation money
The concept of a claim for consolation money- A divorcing spouse may bring a claim for the payment of damages for emotional distress sustained from divorce (e.g., the spouse’s act that broke down the marriage and the ensuing shock, dishonor, etc.), that is, consolation money, to the spouse responsible for the divorce (the spouse at fault) (Articles 806 and 843 of the Civil Act).
- Consolation money for divorce may be sought not only in judicial divorce but also in divorce by agreement and in marriage annulment or cancelation proceedings as well [Articles 806 and 825 of the Civil Act; Article 2(1)1(c)2) of the Family Litigation Act]. Provisions on contributory negligence apply mutatis mutandis to consolation money (Articles 396 and 763 of the Civil Act), meaning that one party’s claim for consolation money will be dismissed if both spouses are at equivalent fault for the breakdown of the marriage (Supreme Court Judgment 93Meu1273,1280 announced on April 26, 1994).
Transfer and inheritance of claim for consolation money- Although a claim for consolation money cannot, in principle, be transferred or succeeded to, it may be transferred or succeeded to if an agreement was already made between the parties on the payment of damages or if action was brought (Articles 806(3) and 843 of the Civil Act).
※ Relevant judicial precedent
“… A claim for divorce consolation money is, in principle, a right exclusive to the person and may not be succeeded to by assignment, inheritance, etc. but because it is a right exclusive to the person in exercise and not in attribution, once the claimant makes the intent to exercise the claim externally and objectively clear by bringing action seeking the payment of the consolation money, succession is possible including assignment, inheritance, etc.” (Supreme Court Judgment 92Meu143 announced on May 27, 1993)
Relationship between a claim for consolation money and a claim for division of property- The two claims differ in many aspects including their grounds, legislative purpose, and trial proceedings, with divorce consolation money being to console the emotional distress of a person who came to divorce by a fault attributable to one spouse and division of property being to claim repayment in accordance to one’s contribution to property amassed jointly by the spouses during marriage. This results in the leading judicial precedent to view them as separate regimes (Supreme Court Judgment 2000Da58804 announced on May 8, 2001). Therefore, claims for consolation money and division of property may be brought separately.
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Reference: The Courts’Standard for Consolation Money Computation |
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According to the judicial precedent, the amount of consolation money is decided in consideration of all circumstances that appear in the arguments, such as ① the sequence and severity of events that led to divorce; ② the causes of and responsibilities for the breakdown in the marriage relationship; ③ the parties’ property status and standard of living; ④ the parties’ ages, professions, etc. (e.g., Supreme Court Judgment 2003Meu2251,2268 announced on July 9, 2004; Supreme Court Judgment 87Meu55,56 announced on October 28, 1987) |