Daños por infracción del deber matrimonial de fidelidad. Una cuestión nuclear en el debate sobre la responsabilidad civil en la familia

In the recent years, the interest on the application of civil liability within family relationships has grown, in particular, to those derived from marriage. There is consensus that it could proceed in the cases when damages would be compensated even if there were no marriage whatsoever between the offender and the victim. The controversy focuses, therefore, in the infringement of the rights or interests deriving from the same legal statute of marriage. This paper intends to focus on the analysis of the breach of one of the main duties of marriage: reciprocal duty to fidelity. We affirm that civil liability can take place as a reparative instrument if its own requirements are verified, provided that the breach is serious, and generate malicious damage exceeding the threshold of tolerance of family relations. Finally, it is argued that the thesis that affirms that liability would only proceed when fundamental rights of the innocent spouse are injured is more rhetorical than practical, especially if the non-pecuniary loss of infidelity can always be conceived as an injury to the constitutional rights to mental integrity or honor.