A recent study carried out by the Leeds-based legal firm LakeLegal in to their own database of divorce actions has revealed that social media, and specifically Facebook, is playing an increasing role in matrimonial proceedings. In a global example of Chinese whispers, this has translated into a claim that the social media website is in fact to blame for the 1-in-5 marital breakdowns.
While the truth or otherwise of the latter suggestion is outwith the scope of this article, it can be worth considering how the information available from one’s online persona can have a bearing on the outcome of any dispute at the breakdown of a relationship.
In Scots Law the conduct of a party is expressly ruled out as a relevant factor when a court is considering how financial matters, and specifically the division of matrimonial property, is to be carried out unless that conduct can be shown to have had a direct bearing on the parties’ respective financial positions. An obvious example of this would be if one party had spent a significant proportion of the couple’s savings on gambling.
As such, information taken from social media and tending to show that a party’s character and behaviour is unsavoury will not usually have a bearing on financial matters. However it is possible that evidence that one is living a lavish lifestyle, has received a lucrative bonus, promotion or salary increase could be considered by a court and have a bearing on any financial order which they decide to make at the conclusion of a case. Such evidence could be said to be relevant for evaluating not just the value of the property built up during a marriage, but also the “resources” which a party would have available to them finance a settlement. Both of these are relevant to the decision which a court may make regarding the division of matrimonial property. It should also be borne in mind that if one is shown to be divesting oneself of assets in order to defeat a potential claim, a court can also take that into account and evidence from social media could potentially be used in that context.
Clearly the other area in which one’s “online persona” may be relevant is where there is a dispute concerning any children of a relationship. A court will consider what arrangement would be in the child or children’s best interests and clearly evidence that one of the party is leading a lifestyle that is unstable, unsavoury or irresponsible could be looked on disapprovingly by a judge in that context.
While a misjudged “comment”, “post” or “upload” will lead to a judge making a decision which they would not otherwise have reached, it is important to bear in mind that in what can often be bitter court proceedings, social media is now just another area in which a party can try to gain an advantage. As more and more clients seek to use evidence from Facebook and other websites, sometimes discretion may be the better part of valour when considering whether to tell the online world about your latest promotion, your new relationship or your next exotic holiday destination.