As part of divorce proceedings, the spouse took several measures to monitor his wife. He presented the information obtained to the court. The spouse applied for the spouse to be removed from the matrimonial home by the court. Rightly so, as the Supreme Court has now ruled (7 Ob 151/17g).
A couple living in divorce continued to live in the shared matrimonial home. Both spouses made serious allegations against each other in the divorce and custody proceedings. In order to gather evidence, the spouse set up a cell phone as a recording device without his wife’s knowledge. He intended to use it to record the spouse’s confidential conversations. Furthermore, the spouse copied some of the spouse’s WhatsApp communications. The spouse also took hair samples from one of the spouse’s hairbrushes as evidence of possible drug use. The spouse presented the findings as evidence in the various court proceedings.
The spouse subsequently applied for the spouse to be removed by the court. She felt that she was being watched and lived in fear that every word she said would be recorded. The spouse also no longer dares to communicate with her (new) cell phone because she fears that the spouse would also “frisk” it. In general, the spouse has suffered from insomnia, night sweats and palpitations since the divorce began.
Pursuant to Section 382b (1) EO, a person can be ordered to leave the home and its immediate surroundings. This is the case if the home serves the urgent residential needs of the other person and it is unreasonable to expect them to continue living together. The law also lists behaviors that lead to eviction. This includes a physical attack, a threat of such an attack or behavior that significantly impairs mental health. The reasons for unreasonableness are independent of fault. In addition, it depends on the effects of the certified behavior and not on the awareness of wrongdoing or the intentions of the person to be expelled.
In this case, the Supreme Court considered the surveillance and spying on the spouse to be “serious breaches of trust and intolerable intrusions into privacy”, which should not be tolerated even in divorce proceedings. The feeling of being under constant surveillance and the fear of further eavesdropping led to restricted communication behavior on the part of the spouse. The spouse’s vegetative complaints were also partly caused by the spouse’s behavior. Further cohabitation was therefore unreasonable because the spouse’s mental health would suffer as a result.
Divorce is never a simple process. Problems often arise, especially if the spouses still (have to) live in the shared marital home. Gathering evidence is often unavoidable in divorce proceedings. In order to protect yourself legally and avoid committing any misconduct yourself, seek comprehensive advice during this process. We will be happy to support you in getting a legally correct and successful divorce.