Abstract

This paper analyzes the matter of whether the breach of the duty of marital faithfulness, as envisaged by art. 143 of the Italian Civil Code, should generate a right to compensation. There are two schools of thought. One of these considers that the absence of a legal provision linking unfaithfulness within marriage to a consequent right to compensation should be interpreted as a deliberate choice of the legislator, allowing for compensation only for personal damages caused by intentionality («abusive adultery»); the obligation of faithfulness within marriage would be superfluous in relation to such compensation. This perspective is founded on the idea that freedom of choice within personal relationships is a fundamental right of the person, which it would be wrong to limit by creating a sort of liability for unfaithfulness, unless the rules of public policy are infringed. The other perspective focuses on the term «obbligo» in the literal statement of art. 143 and overcomes the obstacle posed by the absence of a specific compensatory provision arguing the direct application of art. 2043, or an analogical extension of liability for failure to fulfil an obligation, without questioning whether the legislator's silence regarding the compensatory relevance can be interpreted as a "lacuna iuris". Once the breach of the obligation to be faithful construed as an instance of contractual or tortious liability, marriage would extinguish the right to freedom in intimate- sexual relationships and would generate a reciprocally exclusive right comparable to a full right. This analysis unfolds the main issues, reaching the conclusion that the duty to be faithful does not constitute a full right, nor is it a rhetorical formula, but a coordinating criterion of the various fundamental rights of the person relating to marriage. Art. 143 of the Italian Civil Code does not extinguish but it rather weakens the general importance of the right to personal autonomy in intimate relationships with consequent entitlement to a compensatory action in favour of the spouse only in contexts involving the fundamental rights of the person.