In August 2025 and January 2026, the Family Court issued two decisions in divorce proceedings --- Nº 00786 – 2025 y Nº 00076 – 2026- in which one of the parties sought compensation for moral damages arising from adultery committed by the other spouse.

As a starting point, it is important to note that Article 48 bis of the Family Code provides that, when a marriage is dissolved on the basis of certain statutory grounds expressly established by law—among which adultery is not included—it is possible to claim damages together with the divorce action. Nevertheless, case law has interpreted that a claim for moral damages is also admissible when the ground for divorce is adultery. This position is supported by Article 1045 of the Civil Code, which provides that: “Anyone who, through intent, fault, negligence, or imprudence, causes harm to another is obliged to repair it together with any resulting damages,” as well as by Article 41 of the Political Constitution, which states that: “Through recourse to the laws, all persons shall obtain redress for injuries or damages suffered in their person, property, or moral interests.”

As explained below, although in both cases the claim for compensation was based on the adultery committed by the other spouse, the amounts awarded for moral damages differed significantly. In one case, compensation was set at one million colones, whereas in the other it was established at five million colones—five times higher.

In the case in which five million colones were awarded, the quantification of the damages was carried out by the trial court. However, it was not possible to obtain access to that judgment. Consequently, the specific grounds used to determine that amount remain unknown. Nevertheless, the Family Court’s decision indicates that it was established that the claimant had suffered depression, social isolation, significant alterations to his or her living conditions, and public exposure of the infidelity.

In the second case, the trial court had rejected, among other claims, the request for compensation for moral damages. However, upon hearing the appeal, the Family Court concluded that the plaintiff had experienced feelings of shame, depression, and psychological harm as a consequence of his wife’s infidelity. Based on those circumstances, the Court partially reversed the judgment and, although the claim sought compensation in the amount of three million colones, it ultimately awarded one million colones.

To justify this decision, the Court expressly stated that the amount claimed was disproportionate to the financial capacity of the liable party, who worked in a beauty salon. Consequently, it considered that an award of one million colones was “proportionate, prudent, and appropriate” to compensate for the proven harm.

The Court also granted the liable party a six-month period within which to pay the compensation, specifying that interest would accrue only after the expiration of that period.

It is noteworthy that the quantification of the damages was based on the financial capacity of the liable party rather than on the severity or intensity of the damage suffered. Furthermore, when compared to the other case discussed above, the compensation awarded was five times lower.

However, it should be borne in mind that the trial court judgment that awarded five million colones is unavailable. This circumstance prevents a meaningful comparison of the criteria used to quantify damages in both cases.

It is also relevant that, in one of the cases, the appellant argued that the award of moral damages was improper because the opposing party had likewise engaged in acts of infidelity. The Court rejected this argument, holding that such a circumstance does not constitute either a justification or an exemption from liability for the unlawful conduct attributed to the defendant.

In my view, this conclusion is correct. Regardless of whether the other party had engaged in similar conduct, the evidence established that the claimant suffered depression, social isolation, significant alterations to his or her living conditions, and harm arising from the public exposure of the infidelity, all as a consequence of the conduct of the other spouse. Accordingly, compensation for moral damages was warranted.

These decisions highlight important developments regarding both the availability and quantification of moral damages arising from adultery within marriage and therefore constitute noteworthy precedents in the evolution of this area of family law.