In a divorce, the most revealing evidence may no longer be found in a filing cabinet or bank statement. It could be sitting in your smartphone.
WhatsApp conversations, emails, photographs, location data, social-media posts and digital banking records can create an unusually detailed record of a person’s activities and relationships. As more of our lives move online, smartphones are increasingly becoming an important source of evidence in family-law disputes.
South Africa’s Electronic Communications and Transactions Act 25 of 2002 recognises the evidential value of electronic records, or “data messages”. Electronic information cannot simply be excluded from legal proceedings because it exists in digital form. However, questions around authenticity, reliability, integrity and the identity of the person who created or sent the information can be important when determining its evidential value.
This means that a screenshot of a WhatsApp conversation is not necessarily a legal smoking gun. A court may need to consider whether the conversation is genuine, whether it is complete and whether it has been altered or presented without important context.
The same principle can apply to other digital information. A smartphone may contain location history, photographs and communications. Banking applications can provide records of transactions, while social-media accounts may reveal relationships, travel, purchases or other conduct that becomes relevant to a dispute.
