Betrayal and subsequent forgiveness: what conditions for the charge of the separation?

The matter of the spouse's violation of the duty of fidelity as a condition for requesting the charge of separation returns once again to the knowledge of the Court of Cassation. The Cass ruling deals with it. civ. section I, 2 September 2022 n. 25966.
In the contested sentence, the acceptance by the appellant of behavior detrimental to the duty of fidelity, held by his wife a few years before the filing of the claim, had led the Court of Appeal to exclude the possibility of asserting, in the judicial separation, similar behaviors subsequently held by the woman. In fact, according to the judges on the merits, the husband had not considered the first betrayal such as to make the continuation of the cohabitation intolerable and for this reason it had to be considered a tacit acceptance of the subsequent ones.
In the well-established jurisprudence of legitimacy, failure to comply with the obligation of fidelity constitutes a particularly serious violation of conjugal duties, suitable for making the continuation of cohabitation intolerable. For this reason, infidelity has generally been deemed sufficient to justify charging the responsible spouse for the separation. However, through a rigorous investigation and an overall assessment of the behavior of both spouses, it is possible to ascertain that infidelity was not the cause of the marital crisis, having manifested itself in the presence of a deterioration in relations already irreparably underway, in a context characterized by a coexistence that has by now become merely formal.
The party who requests the charge of the separation for non-compliance with the obligation of fidelity therefore bears the burden of proving the relative conduct and its causal efficacy in making the continuation of cohabitation intolerable. On the other hand, it is up to whoever pleads the ineffectiveness of the facts underlying the claim (that is, the inadequacy of infidelity to determine the intolerability of cohabitation) to demonstrate that the marital crisis precedes the ascertained infidelity.
For the purposes of this assessment, however, the proof of any tolerance shown by one spouse towards the unfaithful conduct of the other was considered irrelevant. In fact, it has been excluded both that this can be configured as an "objective exemption", suitable for eliminating the illegality of the behavior, and the admissibility of a tacit renunciation of the fulfillment of conjugal duties, as having an unavailable nature. The tolerance of the spouse's infidelity can instead be taken into consideration, together with other elements, as a revealing index of a crisis that has been going on for some time, as part of a broader assessment aimed at establishing whether the parties had already failed conjugal affection.
Therefore, in line with these principles, the Court of Cassation held that the trial judge must assess whether the tolerance shown by the appellant towards the extramarital relationship undertaken by his wife a few years, before the filing of the request for separation, could prevent him from making allege the violation of the duty of fidelity, since this relationship had not constituted the cause of the marital crisis, or that the same had remained an isolated episode, possibly due to a temporary blurring of the emotional bond between the spouses, and overcome by a full and complete recovery of relations between them, which deteriorated again at a later date for other reasons.
In conclusion, the husband's attitude of tolerance towards his wife cannot be considered sufficient to justify the rejection of the claim for separation, since the subsequent evolution of the marital relationship must be examined, and in particular ascertain whether there have been new breaches of duty of fidelity, and what the other spouse's reaction was.
Lawyer Armando Cecatiello familiarist Milan Lugano