When one of the spouses wishes to initiate a divorce based on misconduct, at the end of the conciliation hearing, he will then have the difficult task of providing credible evidence to prove the faults he will invoke against his spouse. Otherwise, the judge cannot pronounce the fault divorce judgment.
However, certain limits are stipulated by law, in particular, to avoid excesses in the means used to obtain proof.
So, what is the admissible evidence? What limits does the law impose? How to use it before the judge?
What Mistakes can be Invoked?
The judge can admit the following faults in a divorce for fault case:
- The abandonment of the matrimonial home,
- The acts of domestic violence carried on the spouse or the children,
- The insults, threats or humiliation,
- The endangerment of the well-being of children,
- Not contributing to household needs, etc.
Which Modes of Proof are Accepted by the Judge?
In principle, the evidence is free during the fault divorce proceedings. The spouse who then invokes a fault may prove it by any means.
Thus, the evidence most frequently presented and admissible in the context of a fault divorce are:
- The testimony (handwritten attestation),
- The confession,
- The report of adultery,
- Telephone conversations
- The writings, letters or photos,
- The diary,
- Emails and SMS,
- Bank statements,
- Expert report, private investigator investigation, etc.
It is impossible to list all the existing evidence, but the modes of evidence are constantly evolving. Indeed, to take just one example, the emergence and advancement of dating sites on the internet bring new possibilities of proof with the consultation of data on the computer, connection history and so on.
The judge has freedom of appreciation of the fault. He may then feel that the fault is not sufficiently established to accept it.
It is therefore essential to discuss the strategy to be adopted with your lawyer and your private investigator although an expert private detective Toronto knows the right and legal means to obtain evidence.
Which Modes of Proof are not Admitted?
The proof is only admitted under certain conditions, namely:
- It must comply with the law,
- It must not be obtained by fraudulent means, threats or violence.
It is thus forbidden to:
- Trap your spouse,
- Use telephone conversations or sound or video recordings without the spouse’s knowledge,
- Set up a spy software, hack the email of his spouse etc.
The requirement of lawful and non-fraudulent evidence means that, contrary to popular belief, not all shots are allowed.
However, invoking privacy alone is not considered enough to exclude evidence. Moreover, the judge accepts the evidence provided by means of data on a family computer and whose access is not secured by a password.