Proof of Marital Infidelity in Italian Law

Facing the suspicion of betrayal is an emotionally complex and painful experience. When this suspicion arises in the context of a marital crisis, practical and legal questions immediately emerge: How can I prove infidelity? What evidence is admissible in a courtroom, and what, instead, would expose me to legal consequences? Understanding the line between the legitimate search for evidence and the commission of a crime is fundamental. As a family lawyer in Milan, Avv. Marco Bianucci assists his clients in navigating these delicate waters, ensuring that every action taken is strategically sound and fully compliant with the law.

In Italy, marital infidelity is not a crime, but a violation of the duties arising from marriage, particularly the obligation of fidelity enshrined in Article 143 of the Civil Code. Its demonstration is of crucial importance in separation proceedings, as it can lead to the so-called 'pronouncement of fault'. This means that the judge can declare that the end of the marriage was caused by the culpable behavior of one of the spouses. The consequences of this pronouncement are significant: the spouse to whom the separation is attributed loses the right to receive spousal support and forfeits inheritance rights concerning the other spouse.

Lawful Evidence: How to Gather Valid Evidence

To be used in court, evidence must be collected in full compliance with the law and the rights of others, particularly the right to privacy. Relying on legal methods not only guarantees the admissibility of the evidence but also protects the collector from potential criminal charges. The main forms of lawful evidence include testimonies, documents, and, in certain cases, the assistance of authorized professionals.

Engaging an Authorized Private Investigator

Engaging a private investigation agency with a regular prefectural license is one of the safest and most effective methods. The investigator can conduct surveillance, gather photographs and videos depicting the spouse in public or publicly accessible places in unequivocal attitudes with another person. The material collected, if produced in compliance with regulations, constitutes solid and difficult-to-contest documentary evidence. It is important to emphasize that the investigator cannot violate private residences, install listening devices in homes or cars, or access private electronic devices.

Documents, Messages, and Social Media

Chat conversations (like WhatsApp), emails, private social media messages, or photographs can be used as evidence, but on one fundamental condition: that they were acquired legitimately. This means that messages read on a phone left unattended and unprotected by a password, or on a shared family computer, can be produced in court. Conversely, taking the spouse's phone, forcing the password, or installing spyware to intercept communications constitutes unauthorized access to a computer system, a crime that renders the evidence unusable and subject to prosecution.

Unlawful Activities: When the Search for Evidence Becomes a Crime

The temptation to act independently, driven by anger or frustration, can lead to serious offenses. It is essential to understand that certain actions, perceived as simple attempts to discover the truth, constitute actual criminal offenses, with serious criminal consequences and the procedural inadmissibility of the evidence thus obtained.

Unauthorized Audio and Video Recordings

Recording a conversation in which you are participating is, as a rule, considered lawful. However, leaving a recorder running to capture dialogues between other people in your absence constitutes the crime of unlawful interference in private life (Art. 615-bis of the Criminal Code), especially if it occurs in private places such as a home or car. The same applies to the installation of hidden cameras. This evidence, in addition to being criminally relevant, will never be admitted by a civil judge.

Spyware and Violation of Privacy

Installing spyware on a spouse's smartphone or computer to monitor their activity, read messages, track GPS location, or listen to phone calls is a seriously unlawful activity. Such conduct constitutes multiple crimes, including unauthorized access to a computer or telematic system (Art. 615-ter of the Criminal Code) and violation of correspondence (Art. 616 of the Criminal Code). Evidence obtained in this manner is legally non-existent and can backfire on the producer.

The Approach of the Bianucci Law Firm

The approach of Avv. Marco Bianucci, a family lawyer in Milan, is based on strategic and preventive assessment. Before undertaking any legal action, it is crucial to analyze the situation and potentially available evidence with the client, outlining a path that is not only effective but also fully legitimate. The strategy consists of identifying the most solid and admissible evidence, discarding those that could expose the client to risks. The goal is to build a strong procedural position, based on unassailable elements, to obtain the pronouncement of fault and best protect the client's rights in the separation and divorce proceedings.

Frequently Asked Questions

Can I use WhatsApp chats as proof of infidelity?

Yes, WhatsApp conversations can be used as evidence in a separation case, provided they were acquired legally. For example, if they were read on a device left open and accessible. Their sworn transcription by an expert can strengthen their evidentiary value in court.

Is it legal to secretly record my husband or wife?

It is legal to record a conversation in which you are participating, even without the knowledge of the other participants. It is, however, illegal and constitutes a crime to place a recorder to capture conversations between other people in your absence, especially in private places like a home or car.

What are the risks if I use illegally obtained evidence?

The use of illegally obtained evidence carries two main risks. First, the evidence will be declared inadmissible by the judge and therefore cannot be used in the separation proceedings. Second, you can be criminally prosecuted by your spouse for the committed offenses, such as violation of privacy, unauthorized access to a computer system, or unlawful interference in private life.

Is it always necessary to prove infidelity to get a divorce?

No, to obtain a consensual or judicial separation, it is not necessary to prove any fault. Proof of infidelity is only relevant if you intend to ask the judge for a 'pronouncement of fault', i.e., the attribution of responsibility for the end of the marriage to the unfaithful spouse, with the resulting legal consequences.

Contact the Firm for an Assessment of Your Case in Milan

Managing evidence in a separation case for infidelity is a complex matter, where a misstep can jeopardize the outcome of the proceedings and expose you to legal risks. It is essential to act with awareness and strategy. If you are facing such a situation, Avv. Marco Bianucci offers his consolidated experience to analyze your case, evaluate available options, and assist you in the most appropriate path for the protection of your rights. Contact the Bianucci Law Firm in Milan to schedule an initial confidential consultation.