What cannot be used as evidence in Polish divorce proceedings?

When a marriage breaks down and emotions run high, the temptation to prove the other spouse’s fault at any cost can be very strong. Messages on a phone, location history, private correspondence – all of it seems like valuable material. The problem is that the way information is obtained can have more serious consequences than the divorce proceedings themselves. The line between admissible evidence and a criminal offence is thinner than most people expect.

Table of contents

1. What evidence is admissible in Polish divorce proceedings?
2. Where does admissible evidence end and criminal conduct begin?
3. Hacking a spouse’s phone as evidence – a Poznań court case
4. Recordings made without consent – can they be used?
5. What are the legal consequences of obtaining evidence unlawfully?
6. How to gather evidence lawfully in divorce proceedings
7. FAQ

What evidence is admissible in Polish divorce proceedings?

Evidence in divorce proceedings is governed by the general rules of the Code of Civil Procedure (Kodeks postępowania cywilnego). The parties may present any evidence capable of contributing to the clarification of the facts – witness testimony, documents, photographs, printed text messages and emails, social media posts, bank statements, and expert opinions.

Polish civil procedure does not contain a closed list of inadmissible evidence. The court assesses each piece of evidence individually and has the power to disregard evidence obtained in a manner contrary to law or in violation of the other party’s personal rights (dobra osobiste). Beyond that, evidence obtained unlawfully can expose the person who gathered it to criminal liability – entirely separately from the divorce case itself.

Where does admissible evidence end and criminal conduct begin?

The basic principle is straightforward: you may present as evidence what you have lawful access to. Correspondence you personally conducted, photographs you took yourself, publicly visible posts by the other party – these are generally unproblematic. The difficulty arises when information is accessed without the knowledge and consent of the other person.

Article 267 § 2 of the Polish Penal Code (Kodeks karny) criminalises unlawful access to a computer system – and a mobile phone, laptop, or social media account constitutes a computer system within the meaning of that provision. It makes no difference that the spouses live together or that they once knew each other’s passwords. As the Regional Court (Sąd Okręgowy) in Poznań held in its judgment reference IV Ka V/18: “It is sufficient that the perpetrator acts against the will of the authorised holder of the system. (…) The elements of the offence under Article 267 § 2 of the Penal Code are satisfied where the perpetrator gains access to a computer system using the username and password of an authorised person, but without that person’s knowledge or consent.”

In plain terms: knowing your spouse’s phone password does not give you the right to log in to their accounts without their consent.

Hacking a spouse’s phone as evidence – a Poznań court case

The case decided by the Regional Court in Poznań under reference IV Ka V/18 illustrates these principles clearly. A husband forcibly took his wife’s phone from her hand, then used the services of a specialist company to extract all data stored on the device. He presented this material – recorded to a DVD – to the civil court in the divorce proceedings, intending to prove that his wife had been unfaithful.

The outcome was the opposite of what he had intended. Not only did the court not use the material in the way he had hoped, but the manner in which the data was obtained was itself found to satisfy the elements of the criminal offence under Article 267 § 2 of the Penal Code. The unlawful conduct rebounded directly on the person who had engaged in it.

This case illustrates a principle that applies equally to anyone going through divorce proceedings: emotion is a poor guide when it comes to gathering evidence. Material obtained in breach of the law may not only be disregarded by the court – it may also open a separate legal front, this time criminal, directed against the person who gathered it.

Recordings made without consent – can they be used?

This question arises frequently. The legal position is nuanced. Article 267 § 3 of the Penal Code criminalises recording conversations without the consent of the participants using a listening device or similar equipment. Recording a conversation in which you yourself participate sits in a somewhat different category – the criminal provisions do not straightforwardly cover a participant recording their own conversation.

That said, Polish civil courts treat such recordings with considerable caution. Even where the recording does not constitute a criminal offence, the court may refuse to admit it as evidence if it finds that doing so would violate the other party’s personal rights or be contrary to the principles of social coexistence. Each case is assessed individually – which is another strong argument for discussing your evidence strategy with a lawyer before taking any steps.

What are the legal consequences of obtaining evidence unlawfully?

The offence under Article 267 § 2 of the Penal Code carries a penalty of a fine, restriction of liberty, or imprisonment for up to two years. Importantly, prosecution of this offence requires a complaint from the victim – meaning the other spouse. In a highly conflicted separation, the risk of such a complaint being filed is very real.

On top of that, the person whose privacy was violated may pursue a civil claim for infringement of personal rights, including a claim for compensation (zadośćuczynienie) for the breach of privacy. Someone who resorted to unlawful methods may therefore find themselves facing both criminal proceedings and civil claims – while the divorce case is still ongoing.

How to gather evidence lawfully in divorce proceedings

A few points of practical guidance.

Document what is publicly available or what you have legitimate access to – public social media posts, correspondence you were personally party to, photographs and recordings you made yourself. Keep text messages and emails that you received. Use witness evidence – testimony from people who directly observed relevant events. As for financial documents relating to the joint marital estate, you have legitimate access to a significant portion of them – a lawyer can advise on which documents you are entitled to obtain and how.

Most importantly: before taking any step that might raise doubts, speak to a lawyer. One poor decision on evidence can complicate a case in ways that are difficult to foresee.

FAQ

Can a printed text message be used as evidence in divorce proceedings? Yes, provided the printout comes from your own phone and relates to your own correspondence. Courts assess the authenticity of such printouts – it is worth ensuring they are legible and complete, and that the context of the exchange is clear.

Can I submit as evidence photographs I saw on my spouse’s phone by chance? The assessment depends heavily on the circumstances. There is a significant difference between a photograph that was visible on the screen without any active search, and one that was found by actively going through the device. Each case requires individual assessment – it is worth discussing this with a lawyer before submitting such material to the court.

Can a private investigator lawfully gather evidence for divorce proceedings in Poland? Yes, but only using methods that comply with the law. A private investigator may conduct surveillance in public places and document a person’s behaviour in public. They may not use listening devices, access electronic devices without authorisation, or infringe privacy in ways contrary to law.

What should I do if the other party gathered evidence about me unlawfully? You can raise this with your legal representative and apply for the evidence to be excluded. You may also file a complaint with the police regarding a potential offence under Article 267 of the Penal Code. Whether and how to pursue this is a strategic decision best made with legal advice, taking into account the overall picture of the case.

Are social media posts admissible as evidence? Yes – publicly visible posts are generally admissible. Screenshots of profiles set to public visibility do not require any special authorisation to obtain. Content from private or restricted profiles is a different matter and should be approached with caution.

I am a foreign national – does Polish criminal law apply to me if I access my spouse’s phone without consent? Yes. Polish criminal law applies to conduct that takes place on Polish territory, regardless of the nationality of the person involved. If you access your spouse’s device without their consent while in Poland, you are subject to Polish criminal law in the same way as a Polish national would be.

What about evidence I obtained before I knew this was illegal? Polish criminal law requires intent – the person must have acted knowingly and without the consent of the authorised holder of the system. Whether a particular set of facts satisfies this test is a question of law that depends on the specific circumstances. If you are concerned about material you have already obtained, speaking to a lawyer before submitting it to the court is strongly advisable.

Read more about how evidence works in Polish divorce proceedings and which types of evidence carry the most weight → [link to relevant page]

Have questions about evidence strategy in your divorce case? Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific facts and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego (Family Law Office): Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | tel. +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | www.prawnikodrozwodu.pl