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Question
Posted by: ANON | 2010/05/18

Proof of an affair

I discovered my husband having an affair after he sent me a latter requesting I move out of the common home (he inherited this from his father)
I discovered the above from his cell phone records.
In court docs he has denied the affair and has asked for proof.
Can I ask in the discovery notices that he forward me itemised billings of his cellphone. My attorney doesnt think this would be necessary. I cannot move to another attorney at this stage. Pls advise.
Thank you

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Our expert says:
Expert ImageFamily law expert

Your question relates to everyday allegagtions made in our courts, one party having an affair and then denies it in the papers. On face value it certainly does seem that he had some sort of an affair and you can be sure that a judge or magistrate have dealt with similar matters on hundreds of occasions.

It will be difficult to prove the adultery with the facts at hand, but the records are definately relevant in your case as you never know what kind of witness your husband will be under fierce cross examination.

You certainly will be entitled in terms of the Rules of the High Court as well as the Rules of the Divorce Court to issue a Subpoena requesting your husband to make his mobile phone records available. I would go further and also request all his credit card and bank statements for the past year. If he does not disclose same you have the option to lodge an application to compel him to do so. Discovery of books, documents and records in a divorce action is a powerful tool in the hands of a party alledging, as in your case the fact that he had or is having an affair. A good attorney will know how to cross examine a witness in order to prove the affair on a balance of probabilities.

Bertus Preller
www.divorceattorney.co.za

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Our users say:
Posted by: family law expert | 2010/05/22

Your question relates to everyday allegagtions made in our courts, one party having an affair and then denies it in the papers. On face value it certainly does seem that he had some sort of an affair and you can be sure that a judge or magistrate have dealt with similar matters on hundreds of occasions.

It will be difficult to prove the adultery with the facts at hand, but the records are definately relevant in your case as you never know what kind of witness your husband will be under fierce cross examination.

You certainly will be entitled in terms of the Rules of the High Court as well as the Rules of the Divorce Court to issue a Subpoena requesting your husband to make his mobile phone records available. I would go further and also request all his credit card and bank statements for the past year. If he does not disclose same you have the option to lodge an application to compel him to do so. Discovery of books, documents and records in a divorce action is a powerful tool in the hands of a party alledging, as in your case the fact that he had or is having an affair. A good attorney will know how to cross examine a witness in order to prove the affair on a balance of probabilities.

Bertus Preller
www.divorceattorney.co.za

Reply to family law expert
Posted by: G-Dad | 2010/05/18

Nope only a court can order him to give billing statements, I doubt that you will get anywhere.

Unless you have messages confirming that they actually have an affair you have nothing, phone calls daily proof nothing in court, 25 sms messages also proof nothing, example: he had a friend that need help, messaging is the cheaper option, he can also phone her to help her, it does not mean they have an affair.

I understand that they possibly could have an affair, but without proof you have nothing and it will make no difference on your divorce, it will not make you case stronger, all you are currently doing is wasting your money on legal fees by trying to get information on hubby that could result him getting a protection order against you for emotional abuse and invading his privacy.

Reply to G-Dad
Posted by: ANON | 2010/05/18

Hi G-Dad
I found out about the affair via a itemised phone bill. I do understand that phoning someone does not prove an affair but phoning and messaging continuously thru the day and late hours of the night does prove this. Would a man sms a woman 35 times in a day and phone her daily if there was nothing going on. Once this was out in the open he got an additional cell no.
I don''t want the proof but the man thru his attorney has requested proof. All I need to know is can my attorney request for itemised billings?

Reply to ANON
Posted by: G-Dad | 2010/05/18

To keep on changing attorneys is a costly exercise, because the next attorney does not just carry on from the first, all that has been done will be checked and you will be charged accordingly, most of the cost is not the courts but paperwork. The attorney can charge you for each page read, each phone call ect, my divorce the courts was a fraction of the cost, the major cost was for the paperwork and phone calls.

It easy to accuse anyone of having an affair, it will not make your case stronger, because unless you have photos, or a report of a PI giving you such physical proof you have no real proof. The phone records proof nothing on its own, phoning someone does not proof that they are having an affair.

Reply to G-Dad

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