What is a finding of adultery?

The divorce certificate marks the termination of the bonds arising from marriage. To obtain it, it is necessary that the divorce has been acknowledged (in the case of amicable divorce) and/or pronounced (in the case of divorce for fault) by the judge. Furthermore, for a divorce for fault to succeed, it is imperative that evidence of the said fault is presented to the judge and evaluated by them. Adultery is the most significant and probative fault in this regard, and traditionally, the certification of adultery must be carried out by a bailiff or a private detective.

Certification of Adultery: What is it?

The certification of adultery is a legal document that outlines the findings made by a bailiff, aiming to establish the breach by one of the spouses of their obligation of fidelity to their partner. One might imagine that the adulterous spouse must be caught red-handed in an indiscreet position with their lover. However, this is not entirely true. Material evidence leaving little room for doubt (e.g., a text message or an email showing the existence of an adulterous relationship) may suffice for the certification of adultery. Nevertheless, principles such as the principle of loyalty or the right to privacy of correspondence must not have been violated. Furthermore, for the written certification to be admissible, it must be the result of a visit (by the bailiff) that adheres to certain conditions. As provided by Article 9 of the Code of Civil Procedure, only legally admissible evidence is accepted in civil proceedings. Article 259-1 of the Civil Code reinforces this by excluding evidence obtained through violence or fraud. Article 259-2 of the Civil Code directly addresses the certification of adultery, stating that in cases of a breach of domicile or unlawful intrusion into the privacy of private life, the certification will automatically be excluded from the proceedings/evidence.

The Importance of the Certification of Adultery in Divorce Proceedings for Fault

As a ministerial officer and a public officer, the findings recorded by a bailiff in their writings carry probative force, unlike the statements of an ordinary individual. Therefore, once the certification is drawn up and presented in divorce proceedings for fault, it will not constitute mere testimony but will have probative force.
However, it is not always necessary to go through a bailiff, and resorting to a private detective can be judicious.
In any case, to defend themselves, the party at fault must prove otherwise using compelling evidence. Otherwise, their image in the eyes of the judge will undoubtedly be tarnished, and the outcome of the case will likely be unfavorable.

New Means of Establishing Infidelity: Social Media

As mentioned earlier, there is no need to catch a spouse in the act of adultery to establish their infidelity. Material or immaterial evidence may suffice. Regarding immaterial evidence that can be used as inculpatory proof in a divorce, social media can be a rich source of information when profiles are accessible to the public. In such cases, compromising photos may be collected from Instagram or Facebook, as well as equivocal comments or posts. This is not limited to the most popular social networks; dating websites are also relevant.
In summary, the involvement of a bailiff is advisable for certifying adultery. Nevertheless, sufficient evidence can be gathered through social media and dating sites.

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