Secretly Monitoring WhatsApp Correspondence: Evidence and Fault in Divorce — Attorney Aylin Esra Eren

Yes. Connecting to a WhatsApp account, monitoring correspondence, and obtaining private communication content without the spouse's knowledge and consent may constitute illegality.

Here, it is necessary to draw attention specifically to the second paragraph of Article 189 of the Turkish Code of Civil Procedure No. 6100. According to this provision, evidence obtained unlawfully cannot be considered by the court in proving a fact.

Therefore, just because you think your spouse has violated the duty of fidelity, you cannot interfere with their private communication space without limitation. The fact that a claim is true does not make every method used to prove that claim lawful.

According to the news reflected in the press, in a mutual divorce case heard in Kayseri, the woman files for divorce by claiming that her husband subjected her to physical and economic violence, insulted her, and had an affair with another woman.

The man, on the other hand, files a counter-lawsuit claiming that his wife violated her duty of fidelity. To support this claim, he monitors the WhatsApp account on his wife's phone via WhatsApp Web from the woman's work computer.

However, it is determined that the correspondence was obtained without the woman's knowledge and consent. The court of first instance accepts the man as heavily at fault in the events causing the divorce, and the woman as slightly at fault.

This approach also comes to the fore in the Court of Cassation's review regarding the obtaining of unlawful evidence and the assessment of fault.

The decision awards the woman 500,000 TL in pecuniary and 800,000 TL in non-pecuniary compensation, together with child support for their child; custody is awarded to the mother.

Yes, a fault assessment can be made according to the characteristics of the concrete case.

Examining a spouse's phone without permission, monitoring their messages, secretly accessing their social media accounts, or recording their private correspondence may constitute interference with the privacy of private life and communication.

However, there is an important distinction here. Every phone check does not automatically mean heavy fault. The court evaluates the nature, continuity, how it was performed, and its effect on the marital union together.

No. Making such a general assessment is not correct.

WhatsApp correspondence can be used as evidence in divorce cases if it has been obtained lawfully and can be proven to belong to the relevant person.

For example, a person keeping messages sent to them and secretly accessing the other party's account to obtain messages are not in the same legal situation.

The court looks not only at the content of the message but also at how it was obtained and who it belongs to.

As a separate decision, the ruling of the 2nd Civil Chamber of the Court of Cassation dated March 14, 2024, numbered 2023/5012 E. and 2024/1780 K., is also important regarding the consideration of correspondence obtained secretly from a spouse's WhatsApp Web session as unlawful evidence.

Yes, it can also have serious consequences in terms of criminal law depending on the characteristics of the case.

Article 132 of the Turkish Criminal Code regulates the crime of violating the confidentiality of communication, Article 134 regulates the violation of the privacy of private life, and Article 243 regulates the crime of unauthorized access to an information system.

In particular, installing spyware on a spouse's phone, recording their messages, and sharing this content with third parties may create legal and criminal liability.

Indeed, the decision of the 12th Criminal Chamber of the Court of Cassation reflected in the public domain in 2025 regarding the recording of a spouse's communication content using spyware is also an important example in this regard.

First of all, they should not try to obtain evidence through unlawful methods.

Cracking a phone password, secretly establishing a WhatsApp Web connection, installing spyware, or recording private correspondence without permission can also aggravate the person's own legal situation.

Instead, evidence that is lawful should be evaluated. Witness testimonies, lawfully obtained messages, photographs, documents, and other evidence depending on the nature of the event can be used.

Getting legal support from a lawyer before filing for divorce is important both in terms of preventing loss of rights and presenting evidence correctly.

Yes. Article 189/2 of the Code of Civil Procedure (HMK) contains a clear regulation on this matter.

Whether unlawfully obtained evidence is accepted does not depend solely on the objection of the opposing party. The court must also evaluate how the evidence was obtained on its own motion.

Therefore, every document or screenshot submitted to the file by a party does not automatically qualify as valid evidence.

The most important message of this ruling is that the freedom to seek rights does not grant the authority to violate the fundamental rights of others.

Within the marital union, spouses have a duty of loyalty to each other. However, this obligation does not mean that the privacy and freedom of communication of the other spouse are extinguished.

The possibility that one spouse has acted unfaithfully does not grant the other spouse the right to engage in unlawful surveillance.

Courts are obliged to evaluate both the veracity of the allegations and the legality of the evidence.