In litigation, evidence is the foundation of every successful case. The Code of Organisation and Civil Procedure holds that the evidence presented before a Court of law must be relevant to the matter in issue and must be the best evidence that the party may be able to produce. Generally, the responsibility for proving a fact lies with the party who asserts it. In civil proceedings, the standard of proof is the balance of probabilities – meaning that the Cour decides in favour of the side whose evidence is more convincing and credible.

When preparing to file personal separation proceedings, the main task at hand is to assess the facts of the case and identify the necessary evidence that will support the grounds for separation. In fact, the sworn application which is submitted to court to initiate personal separation proceedings, must contain a list of witnesses, which the party filing the suit intends to produce during the proceedings, and this list should be as comprehensive as possible.

The Maltese Family Courts accepts a wide range of sources that may be presented as evidence to support one’s claim. These include documents like official marriage and birth certificates, bank statements and public agreements; correspondence, such as through emails, text messages, using WhatsApp or other social media direct messages, as well as other forms of digital evidence, including Facebook or Instagram posts, screenshots, photographs, videos and voice recordings. The Court further accepts witness statements, or written declarations, as well as expert reports for example property valuations or psychological, or social welfare assessments.

In family law proceedings, the Court’s role goes beyond simply establishing facts. It also evaluates each party’s behaviour and background, particularly when children are involved and issues of care and custody are at stake. In making its considerations, the Family Court’s paramount concern is the best interest of the children – for this reason, what a party claims or seeks to prove in a Court of law, should be consistent with their actions and conduct in their daily life.

In today’s digital age, an individual’s online presence often provides significant insight into their conduct and routines. Posts, messages and general online behaviour can influence the persons’ credibility, lifestyle and overall behaviour towards their children and the other party. Content shared on social media may be admitted as evidence in Court and at times, can directly challenge the individual’s testimony. For instance, a Facebook post displaying expensive purchases or frequent travel may contradict claims of financial difficulty made in Court. Similarly, updating one’s relationship status to ‘in a relationship’ while alleging adultery by the other party, or posting photos showing that a new partner has been introduced to the minor children at an early stage, may significantly undermine credibility before the Court.  

It is essential to exercise caution and protect one’s online presence by reviewing and adjusting privacy settings to reduce the risk of information being leaked or accessed unlawfully. Where accounts or devices are shared with the other party, it is advisable to change passwords or preferably, to create separate accounts. any evidence intended to be relied upon should be safely preserved. When capturing screenshots of posts, photographs or messages it is important to include visibly timestamps and dates to ensure that the evidence is reliable and admissible at any stage of the process.

Before sharing any content online, it is prudent to consider whether it is something one would be comfortable stating before a Judge in a Court of law. As a general rule, it is advisable to refrain from posting about the ongoing dispute, sharing emotional updates, uploading photos of children during custody disputes or discussing any financial matters publicly. Where safety concerns exist, particular care should be taken not to disclose personal locations or movements. When in doubt, it is preferable not to post at all; however, if this is unavoidable, social media posts should be limited to neutral and positive content that bears no connection to the dispute or the parties involved.

It is strongly recommended that individuals engage in open discussions with their legal representative at an early stage of the separation process regarding their social media activity and any digital evidence in their possession. Drawing on experience, a lawyer can help determine which pieces of evidence are relevant to the case, and how such material should be properly presented before the Court. It is important that one avoids obtaining information unlawfully – for example, by accessing a former partner’s account without their consent – as this may carry legal consequences. Likewise, deleting data or posts after proceedings have commenced is inadvisable as it may raise suspicions of evidence tampering or an attempt to conceal relevant information which could attract unnecessary scrutiny from the Court.

Ultimately maintaining open and honest communication with one’s legal representative helps ensure consistency between the individual’s online behaviour and their legal position, safeguarding their credibility and reputation throughout the proceedings.

In an era where much of life unfolds online, awareness of how social media and digital behaviour intersect with family law has become indispensable. Every post, message or photo can carry legal weight particularly in personal separation or custody disputes. By exercising caution online, preserving evidence responsibly, and maintaining transparency with one’s legal representative, individuals can better protect their interests and credibility before the Family Court.