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Engathering evidence when it comes to applying for a divorce.

Engathering evidence when it comes to applying for a divorce.

With the current phone hacking scandal hitting the headlines at the moment, it is perhaps worthwhile taking a moment to consider the recovery in divorce cases and how you would go about engathering evidence when it comes to applying for a divorce.

With the exception of the Simplified divorce procedure, to establish grounds for a divorce, evidence from the parties to the marriage alone is not enough to allow a divorce to be granted.  There has to be evidence from someone or some other source, other than the husband or wife.  In adultery cases, this can come from the person with whom the spouse has committed adultery, still quaintly referred to in Scotland as the “paramour”.  If the divorce is not opposed the paramour will require to sign a sworn affidavit confirming that he or she has had a sexual relationship with the husband or wife, as the case may be.  Paramours are sometimes reluctant to get involved, but if they are in a relationship with the married person, they can sometimes be more than happy to do what needs to be done to get the divorce through!

If a paramour is not prepared to sign an affidavit, the person seeking the divorce will have to obtain evidence from elsewhere.  This could be from letters passing between the couple, evidence or receipts for hotel bookings or similar.  There are no hard and fast rules as to what evidence is needed and the courts will look at each case on its own merits.  Courts in civil cases tend to have no difficulty in admitting almost any evidence (if it is relevant to the case) provided that it was obtained legally (think Monica Lewinsky and the infamous dress and you will get where we are coming from!).  Very occasionally, private investigators are instructed to obtain evidence of adultery.  This is the exception rather than the rule however, as real legal life is never as exciting as it is on TV!

What this all means is that you can obtain evidence of your spouse’s adultery or unreasonable behaviour from a vast number of sources, but you cannot intercept your spouses’ phone calls without their knowledge and try to rely on that evidence to prove your divorce.  That would amount to a breach of the Regulation of Investigatory Powers Act 2000 – and just look at where that might lead you!!  You have been warned.

If you have any questions about separation or divorce please contact a member of the Family law team.

Posted by Angela Wipat


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