Posted on Jan 21, 2015
Our family law team are all too familiar with this, with clients increasingly forwarding us evidence found on Facebook to use not only in divorce cases, but also in residence (custody) disputes.
Whilst most users will innocently record many aspects of their daily lives on the site, what steps can be taken to ensure that such records don't come back to bite them later on? We have highlighted some of the examples we have come across, where evidence from Facebook has been used:
1. Rekindling an old flame
Often we hear from clients who feel that their relationship started to break down after one party established contact, through Facebook or other social media sites, with an ex partner or school friend they hadn't otherwise heard from in years. Often such communications start innocently enough but can often develop into something more. Sometimes such communications have been kept quiet from their other half and it can be the discovery of those that is the catalyst for the couple splitting up.
2. Evidence of financial position
In a divorce, legally, there requires to be a full disclosure of each party's assets and often their income and resources. It is becoming more and more common for a disgruntled spouse to provide of us with evidence obtained from Facebook, to demonstrate that their ex is perhaps only disclosing half of the story.
It might be a status update, announcing a new promotion/bonus award at work, a geo-tagged photograph or "check in" from a 5 star hotel or perhaps photographs of a shiny new car. These are all examples of evidence that can be produced and lodged with the court which can point to both the person's true financial position and indeed their credibility if they have tried to plead poverty until then.
3. Proof of a new relationship
What most people don't realise is that although they might be publicly separated from their spouse, if they have started a new relationship with a third party prior to divorce, then they are giving their ex ammunition to raise a divorce action on the ground of their adultery. Whilst there is a no fault principle in Scottish divorce law (which means a person will not be penalised financially if they commit adultery), there can be benefits to raising an action under that ground – the most notable one is that no time period needs to elapse before it can be raised. It can be raised immediately. There can therefore be tactical benefits to raising an action under that ground.
However, to establish adultery, evidence is required. Therefore, if a person unwittingly updates their Facebook profile to "in a relationship" their ex partner will not only have additional evidence to support their claim but also, usually, the name of the third party, who requires to be formally named in the court papers and served with a copy of them in an adultery based divorce.
So something as simple as an updated Facebook profile can be very helpful to a disgruntled ex.
4. Child Residence (custody) disputes
Where children are involved, Facebook can be even more problematic if used recklessly. One parent might insist on strict bedtimes for their child, so an innocent post or photo of a child being kept up past their bedtime can cause increased tension between separated parents.
Similarly, if one parent is meant to have the care of the children on a weekend but posts pictures of them out in a nightclub with friends instead, questions are likely to be raised as to who was looking after the children when they were out.
The posting of photographs or videos of the children can itself cause difficulties, especially if one parent does not approve of such posts being made in the first place.
5. Domestic abuse cases
In cases where domestic abuse has been alleged, posts pertaining to contain physical or emotional threats to a person can be extremely useful. Whilst such posts can often result in criminal charges being brought against a person, they can also be used in the civil court, to convince a judge to grant protective orders such as an interdict or non-harassment order.
6. Spending too much time on Facebook!
Something we can't overlook is the fact that quite often, we hear from clients who cite their other half spending too much time on Facebook (and other social media sites) as one of the reasons they want to split up. We will all have experienced frustrating social situations where a person you are trying to hold a conversation with won't put their phone down. Imagine how frustrating that would be if it was your other half?
These are just some of the examples we have come across. Whilst Facebook and social media generally have many advantages for their users, it is wise to carefully consider everything that you post on such sites. Often people use these sites to portray a version of themselves that they want others to be impressed by. However, if you are going through any legal dispute or are likely to become involved in one, it is useful to take even more time to consider the implications of your posts. The advice is simple; If you don't want your ex, solicitors or even a judge to see it later, then don't post it.
Amanda Wilsonis a specialist Family Law Solicitor. If you are seeking advise from a Family Law Solicitor either related to this article or any other Family Law matter please contact Amanda WIlson on 01382 229111, email firstname.lastname@example.org or alternatively contact any member of our Family Law team.
Categories: Family Law