Unlawfully Obtained Evidence and Proof in Divorce Cases

One of the most common expectations in divorce cases is this: "I have got hold of a message, recording or photo that proves the other side cheated or undermined trust; if I submit it to the court, the case is over." However, whether a court takes a piece of evidence into account depends not only on its content but also on how it was obtained. Evidence gathered unlawfully may not be relied on in the judgment, however striking its content; moreover, the person who resorts to such methods may find themselves facing criminal liability.

In this article, we look at which evidence is considered valid in divorce proceedings, what the concept of unlawful evidence means and how it relates to the protection of personal data, with examples from practice.

How Does Proof Work in a Divorce Case?

As a rule, the system of proof in divorce cases is the system of free evaluation of evidence (based on the judge's conscientious conviction). This means the judge does not assess the evidence in a fixed order but freely evaluates it as a whole to reach a conscientious conviction. Messages, photographs, witness statements and hotel or travel records submitted by the parties all play a role in forming this conviction.

However, free evaluation does not mean unlimited acceptance. For a piece of evidence to be considered, it must pass two basic filters: it must have been obtained lawfully, and there must be no reasonable doubt as to its authenticity. Where these two criteria are not met, the evidence may have no effect on the outcome, even if its content seems favourable.

What Is Unlawful Evidence?

Unlawful evidence is a means of proof obtained by violating a statutory provision or a person's constitutional right (such as the right to privacy, the inviolability of the home or freedom of communication). Article 38 of the Constitution and Article 189/2 of the Code of Civil Procedure (HMK) are clear: evidence obtained unlawfully cannot be taken into account by the court in proving a fact.

In practice, an important distinction is drawn here, and this distinction largely determines the fate of a piece of evidence:

Evidence obtained by unlawful means

Here, the evidence already exists; the problem lies in how it was obtained. For example, a notebook, letter or photograph found in the shared home falls into this category. Depending on the particular circumstances of the case, the Court of Cassation may at times accept such evidence; in particular, where the evidence was obtained in the ordinary course of things in the shared living space, the assessment may favour the party.

Evidence created by unlawful means

Here, by contrast, there is no evidence in existence from the outset; the evidence is produced through set-ups, deception or secret recording. Secretly making audio or video recordings, installing spyware on a phone, or getting the spouse to talk through a fake profile and recording it fall into this group. The Court of Cassation and legal scholars consistently accept that evidence "created" in this way can under no circumstances be relied on in a judgment. In other words, evidence set up purely to create proof is rejected without even entering into a proportionality analysis.

The Evidential Value of Messages and Correspondence

SMS, WhatsApp, e-mail and social media correspondence are today the most frequently used type of evidence in divorce cases. Under HMK Art. 199, all kinds of data in electronic form count as "documents"; this correspondence is therefore discretionary evidence in the nature of a document. However, being a "document" does not in itself mean that it will produce a conclusive result:

• It is discretionary evidence. It is not binding like an oath or a final judgment; the judge freely evaluates the correspondence together with the other evidence.
• On its own, it is often not enough. The Court of Cassation states that, as a rule, electronic data cannot be relied on alone in a judgment and must be supported by additional evidence such as witness statements or hotel records.
• Its authorship must be undisputed. It must be proven that the correspondence really comes from the other side, or the other side must not deny it. If there is doubt, the accuracy of the content and whether it has been manipulated are checked through an expert examination.

One point is worth emphasising: forgiveness. If, after a disputed incident, the spouses send each other affectionate messages, the Court of Cassation may treat this as an indication that the earlier incidents were forgiven or tolerated. In that case, a divorce cannot be granted on the basis of incidents deemed to have been forgiven. In other words, the correspondence submitted can sometimes work against the party submitting it.

The method determines everything

A message with the same content may be valid or invalid depending on how it was obtained:

• Situations that may be accepted as lawful: If the spouse already knew the phone's password, or the messages were found on a device used jointly by the spouses, such as a shared tablet at home, this data may as a rule be considered lawful evidence.
• Situations considered unlawful: Installing spyware on the spouse's phone, obtaining their password by deception, or accessing the messages by taking the phone by force constitutes unlawful evidence and is not taken into account in the proceedings.
• Correspondence with third parties: Obtaining the spouse's correspondence with another person also concerns that third person's private life, so it is assessed separately within the framework of the principle of proportionality.

How Is the Authenticity of Submitted Evidence Checked?

The fact that a piece of correspondence or a recording has been submitted to the court does not mean it will be accepted as genuine. Where there is an objection or doubt, the court can check it in several ways:

• Expert examination. The recordings are examined technically to see whether they have been spliced together or whether anything has been added or removed. Where necessary, the court may order the content to be retrieved directly from the device or SIM card; the Court of Cassation regards failing to carry out this examination at all as a restriction of the right to prove one's case. Photographs and screenshots are also checked separately for photo manipulation.
• Verification of authorship. It must be established beyond doubt that the words and conduct in the content really belong to the spouse concerned. Internet records where it is unclear who created them or who the recipient was are not relied on alone in a judgment.
• Consistency with other evidence. Since electronic data is often regarded as weak evidence on its own, it is expected to be consistent with witness statements and concrete documents. Evidence submitted merely to prolong the case or to mislead the other side may be considered contrary to the rule of good faith.

The Personal Data Protection (KVKK) Dimension

Messages, photographs, financial and health records submitted in a divorce case are also personal data. Law No. 6698 subjects the processing of this data to strict rules, and this can lead to consequences that go beyond the mere rejection of the evidence.

• The judicial exception and its limit. Under Article 28/1(d) of the Personal Data Protection Law (KVKK), the processing of personal data by judicial authorities for the purposes of proceedings falls outside the scope of the law. However, this exception covers the court's own acts. A party to the case obtaining the other party's data by cracking a password or with secret software and submitting it is not covered by this protection.
• Access to institutional data. Where a spouse working at a bank or a public institution uses the institution's systems to look up the other spouse's data and submits it to the court, the Personal Data Protection Board treats this as a data security breach, and an administrative sanction may be imposed on the institution concerned.
• Health records (special category data). The spouses' health data is special category personal data. Health records obtained officially by the court through a writ (müzekkere) under HMK Art. 221 are lawful, whereas health documents obtained improperly by the parties are considered both a KVKK violation and unlawful evidence.
• Spyware and private detectives. Installing spyware on a spouse's phone or having them secretly followed violates both the right to privacy and the right to request the protection of personal data. The Constitutional Court has also regarded the use of data obtained by these methods as a violation of rights.

Conflicting Rights: The Right to Prove or Privacy?

In divorce cases, the right to prove one's case and the right to protection of private life frequently come into conflict. Two main approaches stand out in legal scholarship:

• The absolute prohibition view holds that, under HMK 189/2, unlawful evidence should not be taken into account in any way; otherwise, the rule of law and data security would be undermined.
• The balance of interests view, on the other hand, proposes that for facts that are very difficult to prove, such as adultery, where there is no other way to obtain evidence, a proportionality assessment should be made between the right violated and the interest sought to be proven. However, even the proponents of this view consider secret recordings and spyware records made purely to create evidence to be absolutely unlawful.

As can be seen, even under the most flexible approach the line drawn is clear: discussing pre-existing evidence within the framework of proportionality is entirely different from the position of evidence produced purely for the case.

Risk of Criminal Liability

The consequences of collecting evidence unlawfully may not be limited to the rejection of that evidence. Data obtained by unlawful methods without the spouse's consent may give rise to the offences of violating the confidentiality of private life and unlawfully obtaining personal data under the Turkish Criminal Code. In other words, a step taken to obtain evidence can make a person a defendant in criminal proceedings, in addition to being the claimant or respondent in the divorce.

In Summary

In divorce cases, the value of a piece of evidence depends as much on how it was obtained as on its content. There is a major legal difference between evidence found in the ordinary course of things in the shared living space whose authenticity is undisputed, and evidence produced through spyware or secret recording. The latter is often both useless and a source of criminal liability.

For this reason, the soundest approach is to assess how you obtained a piece of evidence before submitting it to the court and, where evidence can be obtained officially through the court, to gather it that way. Since whether a document you hold will be considered valid evidence depends on the circumstances of the particular case, consulting a lawyer before filing a case is important to avoid losing your rights.