Can Text Messages Or Facebook Messages Be Used As Evidence In A Divorce Case?

Even if you have removed your ex-spouse and blocked them, you will probably still have mutual friends. Aggrieved ex-spouses can go to great lengths in their bid for revenge and may even create new accounts to monitor your behaviour post break-up for the sole endeavour of gathering evidence to use against you in financial negotiations or court.

Can evidence obtained from social media be used in court?

In any court case, the family court included, it has to consider the evidence put before it in order to make a decision. What many divorcing couples fail to realise is that any posts they put on Facebook or other social media platforms, any text messages they send to an ex-spouse or any images can, and usually will, be admitted into the proceedings as evidence. Sometimes with far-reaching consequences.

More and more people are being caught out by what they post online. And although many social media platforms have privacy settings, little of what anyone chooses to put online remains strictly private. Social media has been designed for sharing, so you should think twice about what you are posting online if you are going through a divorce. Should you find yourself in court, even private messages may not remain private for long.

Can my private Facebook messages be used?

During court proceedings, the parties usually provide disclosure of certain documents upon which they tend to rely upon to make their case in court. A document is broadly defined as ‘anything in which information of any description is recorded’. Email and electronic communications fall within the definition; social media posts and messages may also potentially fall within the definition and may have to be disclosed.

It can be difficult to claim that social media posts and communications are private or confidential because the duty of disclosure is generally overriding. Additionally, the privacy policies used by social media platforms clearly state that information posted could become publicly available at the user’s own risk. This is likely to lead to a court taking the view that anyone who posts voluntarily on a social media site intends to share such information, and so cannot later claim privacy.

It should be of some comfort that, subject to certain exceptions, your ex-spouse can only use the document for the purposes of court proceedings in which disclosure takes place. It cannot be used for other purposes or be released to any third parties.

Can text messages be used in court?

Text messages can be used to ‘back-up’ anything you are trying to prove. For example, in non-molestation proceedings (injunctions), they can be used to prove that your ex has been threatening or abusive or to disprove allegations.

In proceedings concerning children, text messages can be used as evidence of communication between parents either to prove difficulties in sticking to or arranging contact or perhaps to prove your children are at risk or to evidence alcohol or drug misuse. As discussed above, in financial proceedings, as well as social media posts, text messages can be used to evidence your ex’s lifestyle or a new relationship.

Potential consequences of posting about family cases on social media

Courts will take a dim view of anyone who potentially undermines its authority by using social media. You are forbidden from posting anything about court proceedings on social media. If you do, you could be found to be in contempt of court and risk having to pay a fine, or worse, being imprisoned.

Tips to avoid falling into the social media trap

  • Review your social media privacy settings
  • Think carefully about what you put online
  • Try to avoid posting anything if you are feeling angry or frustrated with your ex and/or the situation
  • If you want to use your ex’s social media posts or text messages in evidence, the clearer the image is, the better. Try to include dates/times and, if relevant, locations.
  • If posts come from third parties, think carefully about involving them in the dispute because they might have to provide a witness statement and come to court.

When separating, emotions are usually running high, but you should always try to maintain your composure and not get caught in an online or public row. Remember, anything you put on social media is impossible to take back and may well follow you throughout the proceedings. Conversations and posts can be saved and screenshot, and whilst you may not have meant what you said in the heat of the moment, they can be used to show you in a bad light.

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