Evidence of a spouse's infidelity and divorce: statutory grounds for judicial divorce and circumstantial evidence

Many people notice a spouse's infidelity but hesitate to divorce because all they have are circumstances. To give the conclusion first, divorce itself is possible even without evidence of infidelity. However, to have infidelity recognized as a ground for divorce and to claim consolation money, a certain degree of evidence is needed. Based on practice, we explain whether you can divorce without evidence when you suspect a spouse's infidelity, and what to prepare and how.

This is also the question we hear most often in consultations.

I'm sure my husband or wife is cheating, but I have no evidence. Can I still get a divorce? If I can't prove the infidelity, can I do nothing legally?

Emotionally the marriage has already collapsed, but legally the fact of infidelity must be proven before it is accepted as a basis for a consolation money claim or as a ground for divorce. Because of this gap, many people put off their decision amid anxiety.

Infidelity is a ground for judicial divorce under the Civil Act

If you are suffering because of a spouse's infidelity or affair, you may consider divorce. In this case, the fault for the divorce is clear, so there may also be room to claim consolation money for the affair. In an infidelity divorce lawsuit, it is most important to know exactly what your rights are and respond accordingly. If you have children, you must also settle child support, so you need to be even more careful, and you should choose the procedure that fits your situation between divorce by agreement and judicial divorce.

Article 840, Item 1 of the Civil Act sets out a spouse's unchaste act as a ground for judicial divorce. Here, an unchaste act means conduct that goes beyond mere affection or contact and breaches the duty of sexual fidelity. This is why infidelity is regarded as the most typical ground for divorce.

There are six grounds for judicial divorce set out in Article 840 of the Civil Act.

1. An unchaste act by the spouse. Cases that breach the duty of sexual fidelity, such as infidelity and affairs, are typical. A temporary lapse is also included, and it is not always necessary to prove sexual intercourse. Examples include going in and out of motels, messages revealing a close relationship, and cohabitation.
2. Malicious desertion by the spouse. This is when a spouse abandons the family economically, emotionally, or physically. Examples include leaving home without reason, cutting off living expenses, and even cutting off contact.
3. Seriously unjust treatment by the spouse or the spouse's lineal ascendants. This includes severe verbal abuse, physical violence, and psychological abuse, and even without direct violence, emotional oppression or insults may be included.
4. Seriously unjust treatment of your lineal ascendants by the spouse. This is similar to Item 3, but differs in that the person who suffered unjust treatment is the claimant's lineal ascendant, such as a parent.
5. The spouse's life or death being unclear for more than 3 years. This is when contact has been lost and it has been impossible to confirm whether the spouse is alive or dead for 3 years or more, such as going missing abroad or deliberately disappearing.
6. Other serious reasons that make it difficult to continue the marriage. These are cases where the marriage has effectively broken down even if none of the five grounds above apply. Examples include unending conflict, severe discord due to personality differences, sexual avoidance, alcohol or gambling addiction, mental illness, and long separation, and the judge decides mainly on whether the marriage has actually broken down.

The key to judicial divorce is proof

Among the grounds for divorce, a spouse's infidelity and affairs account for the largest share. Infidelity is recognized as a clear fault for divorce, and the injured spouse can claim consolation money for the affair.

In a divorce lawsuit, the burden of proof lies with the party asserting the fact. If the spouse cheated, you must submit evidence of the circumstances or acts to the court for it to be recognized as a ground for divorce. The following can serve as evidence.

• Photos or videos showing them entering a motel
• KakaoTalk conversations with the affair partner
• Social media messages, emails, and text messages
• Investigation reports from a reputable private investigator
• Hotel or motel payment records

Not all materials have legal effect. Evidence collected illegally, such as data copied by secretly unlocking a spouse's mobile phone, may be excluded at trial.

Is divorce impossible without evidence?

Not necessarily. Even if it is not infidelity, the court may grant a divorce if it finds that the marriage has broken down for the following reasons.

• Continued disregard or indifference
• Completely neglecting the household finances
• Verbal abuse or emotional abuse

Whether a marriage has broken down is decided by the judge based on the substance of the marriage. So even if evidence of infidelity is lacking, if you can show that disregard, economic neglect, or verbal abuse continued for a long time, that in itself can be a basis for a divorce claim.

However, if you are asserting infidelity, some circumstantial evidence must back it up before a claim for consolation money or proof of the at-fault spouse's responsibility becomes possible.

The need for evidence differs by divorce method

There are three divorce methods, divorce by agreement, divorce by mediation, and judicial divorce, and whether evidence is needed also differs by method.

Divorce by agreement requires no evidence. Which method suits you depends on whether you both intend to divorce and on what issues are in dispute. If the couple agree to divorce, they submit documents to the court and, after a cooling-off period, the divorce is established without much dispute. There is no need to prove the ground for divorce, whether infidelity or personality differences, and as long as there is agreement, a lack of evidence is not a problem.

Judicial divorce is different. If one side refuses to divorce, or disputes consolation money or parental authority citing a fault such as infidelity, the matter goes to judicial divorce, which requires a court decision. In this case, the person who filed for divorce must directly prove that their assertions are true. If you file on the ground of infidelity, you must convince the court that the infidelity actually occurred.

The important point here is that infidelity can be recognized by putting together circumstances, even without perfect evidence such as footage of sexual intercourse. If you are preparing an infidelity divorce, you should start after fully understanding the types of divorce and the differences in procedure, and you should also take care of child support and consolation money in advance.

Circumstantial evidence the court accepts

Circumstantial evidence frequently used in actual lawsuits includes the following.

• Photos or videos of them going in and out of a motel or hotel together
• KakaoTalk, text, and social media messages exchanged with the affair partner
• Card usage records that do not explain where the spouse was
• Private investigator reports prepared within lawful limits
• Statements from acquaintances or witnesses

The court does not look at these materials one by one in isolation. If multiple circumstances together reach a level from which infidelity can reasonably be inferred, there is a chance it will be recognized.

What to consider when there are not even circumstances

If there are no circumstances of infidelity at all and you have only a feeling or intuition, a divorce claim or consolation money claim on the ground of infidelity is very difficult. Even so, you can consider the following.

• Whether, even without proving infidelity, you can comprehensively argue who is responsible for the breakdown of the marriage
• Whether there were other problems serious enough that the marriage cannot continue, such as verbal abuse, indifference, desertion, or financial irresponsibility
• Whether there are records of conversations with the spouse, the reasons you came to live apart, or statements from people around you

Infidelity is not the only ground for divorce. This means that failing to prove infidelity does not close the path to divorce. Even without evidence, there is still room for a judicial divorce to be granted on other grounds.

What to check first once you have decided to divorce

Even if you have decided to divorce, matters such as whether it is legally possible, how property division and custody will be handled, and what procedure to follow if the other spouse does not agree become clear only when checked separately.

When you suspect infidelity but have no evidence and are already emotionally exhausted, many people go around in circles in the same place.

Without evidence, can I do nothing? I can't live with this person anymore, but is that not allowed legally?

The questions that are hard to sort out alone are usually these.

• Whether there is really no way to prove the spouse's infidelity
• Whether the circumstances gathered so far cannot be used in a lawsuit
• Whether there is another way to prove the breakdown of the marriage even if it is not infidelity

A divorce lawsuit is not just a fight of emotions but a procedure contested with logic and evidence. The starting point is getting an accurate diagnosis of what legal judgments are possible in your situation. Whether the circumstances you have gathered so far can be used in a lawsuit, and whether there is another way to prove the breakdown of the marriage even if it is not infidelity, are hard to judge alone, and harder still when emotions are involved.

In a consultation, we review together the legal interpretation of your circumstances, possible directions for response, and how to collect the necessary evidence lawfully.

Rather than rushing to file a lawsuit, preparing step by step from now on is the beginning of protecting yourself and rebuilding your life. If you are considering divorce because of a spouse's infidelity, consult a divorce lawyer to confirm the direction that fits your situation.

In summary

• Even without evidence of infidelity, divorce by agreement or judicial divorce on other grounds of breakdown is possible.
• To claim judicial divorce and consolation money on the ground of infidelity, the claiming party must prove it, and it can be recognized by gathering circumstances even without perfect evidence.
• Always collect evidence lawfully, and avoid methods such as secretly unlocking a spouse's mobile phone.
• If you have children, settle child support, custody, and property division together at the divorce preparation stage.

Last reviewed: 2026-10-19 This article provides general legal information; specific advice is given through consultation.