What Evidence can the Betrayed Spouse Present to the Court?

What evidence can the betrayed spouse present to the court? How can a spouse suspecting that s/he is being cheated on prove the infidelity? Can voice recordings be used as evidence in divorce cases? Can the betrayed spouse use phone calls as evidence in court? Lawyer Elvan Kılıç answers all our questions. Although it is thought that divorce rates increase with the participation of women in the business life, increase in spouses' education level, social, economic and personal reasons, increased awareness of their rights, and the fact that has become easier for the parties compared to the past; there are, as known to all, cases where divorce occurs due to infidelity. Infidelity can occur, especially when people marry young, start a new life without getting to know each other, and due to the fact that most young people choose marriage as a way to get rid of the family pressure in their own home. According to the Turkey Statistical Data of 2017, while the rate of divorce because of men’s infidelity against women is 32.2 percent, this rate is 8.7 percent for men.

WHAT HAPPENS IN DIVORCE CASE OCCURING DUE TO INFIDELITY?

The spouse who finds out that he/she has been cheated on may file for divorce within 6 months of finding out according to Civil Code No. 4721. In the case, if there is a joint child, the spouse demands custody of the child, pecuniary and non-pecuniary damage compensation, and alimony. Pecuniary and non-pecuniary damage may also be requested since the other spouse violated the obligation of loyalty because of a third party. A spouse fulfills their financial obligations in many ways during marriage. With the law amended in 2002, because of the regime of participation in acquired property, since everything the spouses buy occur within the marriage, they can ask for liquidation of these during divorce or demand financial compensation for financial support given to the spouse during marriage. Non-pecuniary damage is a concept which is not preferred by judges in Turkish law unless it is an extreme event. Matters such as breakdown of the betrayed spouse, the loss of trust in the other spouse, and having to undertake the care of the joint children alone after the divorce are taken into consideration. This is because our law requires non-pecuniary compensation for the marriage in which so much was invested and yet destroyed because of a third person.

HOW CAN THE SPOUSE SUSPECTING OF BEING CHEATED ON PROVE IT?

It is now easier to find evidence of cheating among spouses sharing a life and home together. In the past, the red lipstick stain on the shirt was considered the only evidence of infidelity. With the developments in technology, the betrayed party began to obtain evidence about their spouse more easily. Suspecting spouses should prove the infidelity in a tangible way. Anything can be used as evidence in court, but this evidence must be obtained in accordance with the law.

CAN WHATSHAPP MESSAGES BE USED AS EVIDENCE?

Whatsapp messages obtained illegally and submitted to court are not accepted as evidence. If the betrayed spouse gets a hold of his/her spouse's phone without the knowledge and permission of the spouse and reads the messages and present them as evidence, the court may reject the case due to unlawful evidence. However, if he photographs the messages popping up on the phone screen with his/her own phone, this is not unlawful evidence and s/he can submit it to the court. Or any documents or items showing the cheating are left by the cheating spouse in the joint house s/he shares with the other spouse may be presented as evidence in court.

CAN VOICE RECORDS BE USED AS EVIDENCE?

Under normal circumstances, voice records are considered a violation of privacy and not considered as lawful. In some cases, however, the judge may, according to his discretion, accept them as evidence if he thinks that "the person's main purpose is to solve the case" by looking at the intent of the person recording the voice. If the betrayed spouse proves and indicates that s/he has made the voice record only to assist in the divorce case, it may be presented as lawful evidence. This is because if the violation of loyalty obligation between spouses cannot be proved by witnesses, it can be proved by voice recording. Unlawfully created evidence is in no way accepted in a divorce case, but evidence that has not been lawfully obtained is also evaluated according to the nature of the substantial event. If the cheating spouse knows that his/her voice is being recorded, the voice recording may be presented as evidence in the divorce case. But in practice, such a situation is very uncommon. Therefore, usually, there are exceptional circumstances. Consequently, divorce cases may turn into contested divorce when filed because of infidelity. If there is a joint child, custody is awarded to the best caregiver for the best interests of the child, through a specialist pedagogue to reduce the child's harm. If the betrayed spouse's financial state is inadequate, the judge uses discretion according to the fault rate and economic power of the faulty spouse. In any case, legal advice should be sought from an expert lawyer in case of divorce due to infidelity.