What is a wife entitled to upon divorce in the case of infidelity?

If the house in question belonged to the community property of spouses (BSM), the extramarital affair has no impact on the settlement of property after the divorce. In the sense of Section 150 of Act No. 40/1964 Coll. the Civil Code, as amended, it is presumed that the shares of both spouses are equal. In addition, upon a divorce, the court should take into account the following criteria: “Each spouse is entitled to demand reimbursement of what they expended from their own funds on the common property, and is obliged to reimburse what was expended from the common property on their other property. Furthermore, regard shall be paid primarily to the needs of minor children, to how each spouse cared for the family, and to how they contributed to the acquisition and maintenance of the common things. When determining the degree of contribution, regard must also be paid to the care of the children and the management of the common household.”

If you do not settle the community property within 3 years, a statutory fiction arises that the shares in real estate properties are equal (Section 149 (4) of the Civil Code), meaning that both of you will be owners of 1/2 of the house.

The above applies only to a situation where you acquired the real estate property jointly during the duration of the marriage and it was in community property (with a share of 1/1). If the house was acquired by one of the spouses before the marriage, the other spouse would have no claim to a share of this real estate property, even in a situation where the marriage was concluded after the acquisition of the real estate property.

Rights of a wife upon the divorce of a marriage

If, as a consequence of the divorce, one of the spouses is at risk of entering into financial distress for a certain time (e.g., due to unemployment) and will not be able to secure basic living needs on their own, Act No. 36/2005 Coll. the Family Act (hereinafter referred to as the “FA”) gives them the right to request from the former spouse a so-called maintenance allowance for a divorced spouse.

According to Section 72 (1) of the FA: “A divorced spouse who is unable to support themselves may request from the former spouse to contribute to their reasonable maintenance according to their abilities, possibilities, and property relations.”

As the Regional Court in Prešov explains in its judgment Case File No. 4CoP/21/2023 of 19 September 2023: “The person entitled to the award of a maintenance allowance is a former spouse who is unable to support themselves. This inability may stem from subjective or objective circumstances on the part of the entitled person. Subjective ones include poor health, a lack of qualification or its loss due to long-term absence from employment due to performing personal care for a minor child up to 3 years of age, or an older child if they require continuous care, or the factual impossibility of placing the child in a day-care facility in the given locality, or the factual impossibility of finding employment in the given locality corresponding to their physical and mental abilities.”

According to the conclusions expressed in the judgment of the Regional Court in Trnava, Case File No. 23CoP/68/2019 of 25 February 2020: “Reasonable maintenance means a narrower scope of maintenance than is the case with the mutual maintenance obligation during marriage. (…) Other living needs of the divorced spouse, such as housing, clothing, and cultural needs, are also to be satisfied to a reasonable extent, taking into account their age, health condition, way of life, and the like.”

The mutual maintenance obligation is one of the important duties of spouses, which spouses perceive primarily as a moral obligation and fulfill voluntarily. Only in exceptional cases is court intervention required when determining maintenance between spouses. In principle, the same applies to the maintenance allowance for a divorced spouse (Decision of the Supreme Court of the Czechoslovak Socialist Republic, Case File No. Cpj 36/77 (R 3/1978) of 19 December 1977).

According to Section 72 (2) of the FA: “If the former spouses do not agree, the court shall determine the scope of the maintenance allowance upon the petition of either of them. In doing so, it shall also take into account the causes that led to the breakdown of relations between the spouses.“

According to Section 72 (3) of the FA: “The maintenance allowance for a divorced spouse may be awarded for a maximum period of 5 years from the date the divorce decision enters into legal force. Exceptionally, the court may extend this period if the divorced spouse to whom the court awarded the allowance is, for objective reasons, unable to support themselves even after the expiry of this period, especially if it concerns that spouse who was entrusted in the divorce proceedings with the personal care of a child with a long-term unfavorable health condition, or a spouse who themselves has a long-term unfavorable health condition requiring continuous care.”

Regarding the difference between the mutual maintenance obligation between spouses and former spouses, the Regional Court in Trnava (in the above-cited judgment) stated the following: “Under the condition of inability to support oneself, the difference from maintenance between spouses is evident, since in this case there is no legal claim to a basically identical standard of living, and a qualified degree of dependency is required. Even if one of the spouses has significantly above-average income or property relations, while the other divorced spouse finds themselves in a worse financial situation but has the ability to support themselves (even from potential benefits within the social security system), the claim to the allowance does not arise. Judicial practice takes the position that a divorced spouse is not obliged to liquidate their real estate property, household furnishings, or clothing ensuring a reasonable standard (this does not apply to significant property values, which would be contrary to the purpose of the respective regulation) nor the property substance acquired within the division of the community property of spouses.”