6 March 2016

Going through the e-mail of your ex

By Dylan Bertsch

Following my weblog ‘can social media influence a divorce?' 

I will use this weblog to discuss an interesting decision of the District Court of Alkmaar which ruled that information obtained by a woman by sniffing around in the private e-mail of the man can have an effect on the extent of spousal maintenance.

The facts

A man and a woman got married in 1997 and had a daughter together. In 2005, they relocated to Dubai in view of the man’s work. In the summer of 2012, the relation broke down and the woman returned to the Netherlands with the daughter. The man continued to reside in Dubai. As part of the divorce proceedings, the woman requested spousal maintenance, as the man earned a high salary and both parties lived in luxury in Dubai. The man alleged that he could not afford to pay spousal maintenance. This was supposed to be evidenced by various financial documents which the man had introduced into the proceedings.

Illegally obtained evidence

The woman alleged that she had evidence demonstrating that the financial documents of the man were false and that he could afford more than he suggested. How did she obtain this evidence? Since her departure from Dubai in 2012, the woman, without permission from the man, has had access to the e-mail of the man, both business and privately. Consequently, the woman had been able to read all correspondence between the man and his lawyer and between the man and his accountant, for years. For example, the man instructed his accountant to misrepresent the figures of his company, as a result of which the financial statements reported a loss of approx. € 250,000. In addition, the documentation showed that the man’s income was much higher. The man believes that this concerns a serious breach of his privacy as well as a breach of privacy of correspondence.

Evidence nevertheless admitted

The court believes that the woman has obtained evidence in a manner that breaches the man’s right to privacy. Whether this is justified given the circumstances is deemed less relevant by the judge however. And even if it is, the court still believes that this evidence may be admitted. The court finds: “In principle, the general social interest that the truth is exposed before the court, as well as the interest the parties have in arguing their cases before that court, outweigh the interest of excluding evidence.” Hence the woman is permitted to rely on the evidence.

In conclusion

The decision by the District Court of Alkmaar goes to show that family law does not easily exclude evidence on the grounds of this evidence having been obtained illegally, as is often seen in criminal law. After all honesty is the best policy.

Dylan Bertsch

Dylan Bertsch

Lawyer and mediator

Dylan is a committed and passionate lawyer who is specialised in family law.

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