Generally, the person who claims something in court must also prove it. However, especially when it comes to matrimonial disputes, it is often not the case that there is a lot of evidence. Unless a divorce is imminent, the preservation of evidence and documentation is usually not a core interest within a marriage. But what can you do to put yourself in a good position if a lawsuit with your now unloved better half seems unavoidable?
#picsoritdidnthappen- what does that mean in divorce proceedings?
#picsoritdidnthappen means that if there are no photos of something, then it didn’t happen. In the best-case scenario, there is conclusive evidence if you are seeking contested divorce proceedings. Experience has also shown that what “evidence” is available also plays a role in negotiations surrounding a (mutually agreed) divorce. Naturally, the wife who has caught the husband red-handed will think she has a good chance in court. This will strengthen her negotiating position out of court. If, on the other hand, you have the feeling that it would be better not to go to court, you will be more willing to make (financial) concessions to the other person.
What evidence can be used in court?
Some marital misconduct is easy to prove. If someone has moved out of the marital home (“malicious abandonment”), this will be easy to prove. Other serious marital misconduct, such as infidelity, violence or psychological terror, can be more difficult to prove. Especially when it comes to alimony after the marriage, it makes sense to keep your eyes open and collect “evidence” of marital misconduct by the other party. PI reports, for example, are suitable as evidence in court. Private Investigators are expensive, but it may be possible to claim the costs back from the unfaithful partner or the affair. Images (photos or videos), letters, e-mails, medical reports on physical injuries, screenshots of text messages or WhatsApp conversations, witness reports, etc. are also suitable as evidence in court. It is also possible to make detailed memory logs of conversations that were held with your partner.
Tape recordings are legally tricky. These can be illegal without the consent of the other party and may even be relevant under criminal law. It also depends on whether you are recording a conversation in which you are taking part or not. What you then do with the recording is also relevant. In any case, you are not allowed to play it back. Under certain circumstances, however, you could present a transcript of a conversation in which you were present in court.
Checking your partner’s cell phone – How far can you go?
Smartphones and the like are a good thing, but can become a problem in divorce proceedings. Most people either know someone who has (secretly) checked their partner’s cell phone or it has happened to them. But what if evidence of an affair or serious marital misconduct is found in the other person’s cell phone? Can this evidence be used? In short: Yes, but it can lead to other (legal) problems. In any case, secretly checking your partner’s cell phone is an abuse of trust. Often also a legal violation and perhaps also marital misconduct.
There is a tension between one person’s interest in investigating and the other’s right to privacy. In some relationships, it is also agreed that there is mutual access to each other’s cell phones. Whether and how the inspection of the partner’s cell phone is legally sanctioned can also depend on the intensity of the “cell phone espionage”, what was agreed between the partners, whether the partner’s cell phone is specially secured, e.g. by means of codes or whether it is lying around unlocked and whether technical aids have been used, etc.
What happens to unlawfully obtained evidence in court?
There is no prohibition on the use of evidence in Austria. In simple terms, this means that illegally obtained evidence can also be presented in court and the judge may take it into account. So, if you secretly look into your partner’s cell phone and find evidence of infidelity there, this evidence can be used in court in divorce proceedings. However, criminal, civil or even data protection sanctions may then follow under certain circumstances. A balance must be struck here. Sometimes it will also be a question of how important it is to win the divorce proceedings or how expensive it would be to lose them.
One’s own conduct in relation to the collection of evidence can also be relevant to the divorce proceedings themselves. It is always a gray area: Is it still a legitimate interest in obtaining information or does the search for evidence itself constitute marital misconduct? Particular care should be taken with the use of technical means (tracking devices, video surveillance, eavesdropping devices), as this seriously encroaches on the privacy of the person being monitored.
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