The proof in divorce proceedings and the principle of invasion of privacy

The respect of private and family life and the confidentiality of correspondence represent constitutional principles guaranteed by the Article 22 of the Constitution of 17 December 1962.

Any victim of an invasion of privacy or the confidentiality of correspondence can claim damages.

However, when these fundamental rights are balanced with the need for evidence in a divorce proceeding, it happens that those principles are subject to less protection in view of the purpose of divorce.

Indeed, the divorce proceedings are necessarily situated in the private sphere and the search for truth or the production of evidence implies sometimes that some breaches of privacy are committed.

Therefore, it happens that the principle of the confidentiality of correspondence and the right to privacy know, in divorce, a temperament. It is in this sense that the European Court of Human Rights recognizes that the principle of protection may be tempered when the invasion of privacy allows the establishment of the truth in the proceedings and this violation is proportionate to the legitimate aim pursued.

The Monegasque case law, quite sparse on this matter, has, recently confirmed by a contrario reasoning that the need to ensure one’s defense could be an excuse justifying a violation of the confidentiality of correspondence.

In view of ensuring his defense in the context of divorce proceedings, it has been admitted, in an isolated decision, that the litigant who wants to submit private correspondence between a spouse and a third person, can request by filing an ex-parte petition before (“Compulsoire”) the President of the Court of Monaco to authorize to mandate any bailiff for the purpose of noting the private correspondence.

In order to respect the principle of respect of privacy and the confidentiality of correspondence, this authorization is conditioned by circumstances of time and place (date of conversations, authors, place of registration of the dialogues). The judge appreciates, of course, case by case the opportunity of delivering such authorization.

In the same way, the Court of Appeal considered, also by a contrario reasoning, that the spouse who has violated the confidentiality of correspondence could not invoke the need to defend herself in order to justify the violation of the principle given that the divorce proceedings had not yet started when the facts prosecuted occurred.