Does infidelity have to be physical? Extra-marital relationships and fault in a Polish divorce

When clients come to us with questions about fault in divorce proceedings, the topic of extra-marital relationships comes up almost every time. And almost every time, the same question follows: “Will the court treat this as infidelity if nothing actually happened between them?” The answer is more nuanced than most people expect. Polish courts have long moved beyond equating marital fault solely with physical infidelity. Marital loyalty is a broader concept, and breaching it can take many forms. So what exactly does the court look at?

Table of contents

1. What does marital loyalty actually mean under Polish law?
2. A relationship without physical infidelity – can it still count against you?
3. Dating apps and online activity – where does the court draw the line?
4. Seeking emotional support outside the marriage
5. Why timing can be everything
6. Practical takeaways
7. FAQ

What does marital loyalty actually mean under Polish law?

Under Article 23 of the Family and Guardianship Code, spouses are obliged to support each other, to maintain a shared life, to remain faithful, and to cooperate for the good of the family. Faithfulness here is not understood solely in a sexual sense – it also encompasses emotional loyalty, discretion, and restraint in relationships with third parties.

When determining fault for the breakdown of a marriage under Article 57 of the Family and Guardianship Code, the court assesses whether and to what extent each spouse’s conduct contributed to that breakdown. Relationships with third parties form part of that assessment – but they are one element among many, and they are not always decisive.

A relationship without physical infidelity – can it still count against you?

Yes – and the Court of Appeal in Poznań addressed this directly in its judgment in case I ACa 230/19. The court was assessing a relationship between a husband and a woman he had known professionally for many years. No physical infidelity was established. But the court noted that the relationship – including certain intimate gestures – “by creating an appearance of infidelity, did not help to maintain the marital bond.”

This is an important signal for anyone who assumes that the absence of a sexual relationship automatically rules out a finding of breach of marital loyalty. The court looks at the full picture: the nature of the relationship, its intensity, and the effect it had on the marriage. An appearance of infidelity can be treated as an aggravating circumstance even where physical infidelity did not occur.

Dating apps and online activity – where does the court draw the line?

The same judgment also addressed the husband’s online activity – browsing dating websites and making brief online acquaintances. The context mattered: the husband was going through a difficult period, was not receiving support from his family, and turned to the internet for understanding and conversation.

The court noted that these contacts should not be treated as “crossing the boundaries of marital loyalty” – yet their existence was still recorded as a factor that had worsened the relationship between the spouses.

What does this mean in practice? Activity on dating platforms or romantic messaging with other people does not automatically determine the outcome on fault – but it is not ignored either. The more clearly romantic or intimate in character, and the more directly it affected the marriage, the greater the risk that the court will treat it as a breach of loyalty.

Seeking emotional support outside the marriage

The case I ACa 230/19 also illustrates another important dimension: motivation. The husband had formed a close friendship with a woman who shared a particular life experience – both of their spouses struggled with alcoholism. They supported one another, sought mutual understanding, and attended support group meetings together.

The court assessed this relationship more leniently than it would have assessed a romance pursued for different reasons. That does not mean that seeking emotional support outside the marriage goes unnoticed – but context and motivation carry real weight. A relationship rooted in a shared difficult circumstance and based on mutual help is treated differently from one that is romantic or sexual in nature.

Why timing can be everything

This is an aspect that is often overlooked in practice, yet it can be decisive. In judgment I ACa 230/19, the court stated explicitly that the disloyalty that occurred at a particular point in time “had no bearing on the breakdown of the marital relationship between the parties, as the spouses were already in serious conflict.”

In other words: if an extra-marital relationship began only after the marriage had already factually broken down – after shared life, emotional connection and common household had all ceased – its impact on a finding of fault may be significantly limited or nil. The court does not just ask “what happened?” but also “when?” and “did this contribute to the breakdown, or did it occur after the marriage had already collapsed?”

In our experience, establishing this timeline precisely – when did the extra-marital relationship begin, and where in the arc of the marriage’s breakdown does it sit – is often one of the most important tasks in cases where outside relationships are relied upon as evidence of fault.

Practical takeaways

Assessing extra-marital relationships in the context of marital fault is not a binary exercise. Courts analyse each case individually, weighing four elements: the nature and intensity of the relationship, its effect on the marital bond, the motivation behind making contact with the third party, and the chronology – that is, whether the relationship preceded the breakdown of the marriage or arose only after it had already effectively ended.

Before raising allegations of breach of marital loyalty, it is worth carefully analysing all of these circumstances – ideally with a lawyer who can realistically assess the prospects and risks in your specific situation.

FAQ

Is using a dating app considered infidelity under Polish law? Not in a strict legal sense – but it can be treated as evidence of a breach of marital loyalty, particularly where it involved establishing romantic contact with other people. The court assesses the impact of such activity on the marital relationship, not simply the fact that it occurred.

Can a close friendship with someone else – without physical infidelity – count against me in divorce proceedings? Yes. The Court of Appeal in Poznań in case I ACa 230/19 made clear that a relationship creating an “appearance of infidelity” can be treated as an aggravating circumstance, even where no physical infidelity took place.

What if the extra-marital relationship only began after the marriage had already broken down? If the marriage had already effectively ceased to function at the time the relationship began – with shared life, emotional connection and common household all gone – its impact on a finding of fault may be limited or absent entirely. The court examines whether the conduct contributed to the breakdown, or whether it followed only after the breakdown had already occurred.

Does the motivation behind an extra-marital relationship matter to the court? Yes. A relationship that arose from a search for emotional support in difficult personal circumstances is assessed more leniently than one pursued for romantic or sexual reasons. Courts look at context, not just the bare fact that a relationship with a third party existed.

Can text messages and online conversations be used as evidence of a breach of marital loyalty? They can – if they are romantic or intimate in character and are presented as evidence by the other party. Electronic correspondence is increasingly relied upon in Polish divorce proceedings as documentary evidence, and it is worth being aware of this when assessing the strength of a case on either side.

I am a foreign national going through divorce in Poland – does this framework apply to me? Yes, if your divorce is being heard by a Polish court. The fault rules described in this article apply regardless of nationality. It is worth noting that many Western legal systems have moved to no-fault divorce, so the Polish approach – where fault still carries real consequences, particularly for spousal maintenance – can come as a surprise. If you are uncertain how this affects your situation, taking legal advice early is strongly recommended.

What practical difference does a finding of fault actually make? The most significant consequence concerns spousal maintenance. A spouse who bears exclusive fault for the breakdown of the marriage can be required to pay maintenance to the other spouse on the basis of a significant deterioration in that spouse’s financial situation – not merely financial need. This is a lower threshold and can lead to higher and longer-lasting payments. The fault finding can also have an indirect bearing on the division of marital assets in subsequent proceedings.

Read more about when Polish courts find exclusive fault and when they find shared fault → [link to relevant page]

Do you have questions about fault in your divorce proceedings? Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific facts and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego (Family Law Office): Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | tel. +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | www.prawnikodrozwodu.pl