"Friends without benefits"

A husband raised claims against a close friend of his wife demanding the reimbursement of costs for a private investigator who was observing the nature of the relationship between the friend and the spouse. The Austrian Supreme Court denied the claim, arguing that the third party wasn't informed that the friendly relationship was seen as disruptive by the claimant and therefore isn't liable for any costs in this respect.

Whether from movies or books, probably everyone is familiar with the story of the doubting wife who hires a private investigator to observe the husband who is supposedly working late. While such fictional stories only deal with the emotional turmoil, has anybody ever asked who will cover the costs? If the answer is "no", then don't worry! This is where the recent ruling of the Austrian Supreme Court comes into play! In the underlying case a husband hired a private investigator to observe the allegedly shady activities of his wife and later claimed for reimbursement of costs against her acquaintance.

While there were already favourable court decisions stating the liability of a third party for deliberate sexual relationships with spouses, this case had more nuances as only a friendly relationship could be proven. The court stated that in case of "friendly relationships without an erotic basis" the balance of interests must be considered. On the one hand there is the protection of the marriage itself and on the other hand the freedom to have friendships at one's own discretion.

In the end in late August the Supreme Court ruled that a third party is only liable if they are informed that the intention to have a friendly relationship is unacceptable for the spouse. Conversely, it may be considered that the average person doesn't have to assume that every profound relationship is a disruption to a marriage.

(5 Ob 105/18d)

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