Evidential Value of WhatsApp, SMS, and Social Media Correspondence (HMK 189/2 Explained)

In divorce cases, WhatsApp, SMS, and other digital correspondence are now among the most critical pieces of evidence. According to the established jurisprudence of the Supreme Court of Appeals, such correspondence is accepted as evidence as a rule, however, legality, attribution, and verifiability conditions must be met.

In this guide; Which messages constitute evidence, In which situations they are rejected, How they are used in cases of adultery, insult, and behavior undermining trust, And the court’s examination method are discussed in detail.

1. Evidential Value of Message and WhatsApp Correspondence and General Conditions 

According to Supreme Court of Appeals decisions, WhatsApp correspondence, SMS, and social media messages (Facebook, Outlook, etc.) generally constitute evidence in divorce cases. However, certain conditions must be met for this data to be considered as a basis for judgment:

Legality: Pursuant to Article 189/2 of the Code of Civil Procedure (HMK) No. 6100, evidence obtained unlawfully cannot be taken into account for proof. The burden of proving that the correspondence was obtained through lawful means rests with the party submitting the evidence (Supreme Court of Appeals, 2nd Civil Chamber, 2023/3675-2024/9976 Decision).

Authenticity and Verification: It must be proven that the messages belong to the other party (are their product). If the other party denies the content of the correspondence or that the number belongs to them, it is mandatory for the court to determine the number and conduct an expert examination (Supreme Court 2nd Civil Chamber, 2022/4329-2022/5823 Decision).

Need for Supporting Evidence: Data in electronic form may not always be sufficient to prove facts on its own; these data need to be supported by other evidence (e.g., witness statements) (Supreme Court 2nd Civil Chamber, 2016/17151-2018/5463 Decision).

2. Distinction Between Unlawful Evidence and Privacy of Private Life 

The Supreme Court conducts a “legality” review based on how messages are obtained:

Spyware: Retrieving deleted records or secretly extracting data by installing programs like “disk digger” on a spouse’s phone is considered “unlawful evidence” and is not taken into account in determining fault (Supreme Court 2nd Civil Chamber, 2021/7539-2021/9869 Decision

Common Use and Admission: Messages obtained from a computer used jointly by spouses or messages whose content is accepted (as a qualified admission) after a phone is forcibly taken, may be accepted as evidence without being considered within the scope of privacy of private life (Supreme Court 2nd Civil Chamber, 2023/4721-2024/2154 K; Supreme Court 12th Criminal Chamber, 2018/8128-2019/4464 K).

Criminal Law Aspect: Presenting messages belonging to a spouse to the court for the purpose of proving allegations in a divorce case may not constitute the crime of violating the privacy of communication and private life, on the grounds that it does not bear the “consciousness of acting unlawfully” (Supreme Court 12th Criminal Chamber, 2018/8187-2019/6202 K).

3. The Role of Message Contents in Determining Fault 

Message records serve as a fundamental basis for proving different types of fault in divorce cases:

Proof of Adultery: When message contents are supported by witness statements and other evidence, they may be considered sufficient for the proof of adultery (Supreme Court 2nd Civil Chamber, 2024/9853-2025/6237 K). However, messages whose sender is unknown or only exchanged late at night prove not adultery alone, but “behavior that undermines trust” (Supreme Court 2nd Civil Chamber, 2023/3701-2024/536 K).

Behavior Undermining Trust: Messages containing expressions like “My love”, “your happiness makes me happy too” have been accepted as behavior undermining trust, leading to the man being considered fully at fault (Court of Cassation 2nd Civil Chamber, 2022/8447-2022/10321 K)

Insult and Threat: As a result of expert examination of messages recorded on the phone, it is possible to prove the incident of insult (Court of Cassation 2nd Civil Chamber, 2015/22565-2017/1896 K).

4. Procedural Rules and Examination Method

List of Evidence: Message records must be included in the list of evidence submitted within the specified period. Message contents not on the list and not consented to by the opposing party cannot be taken as a basis for judgment (Court of Cassation 2nd Civil Chamber, 2007/16312-2008/16144 K).

Expert Examination: The court must summon phone records to confirm the accuracy of the submitted screenshots and, if necessary, order an expert examination of the device (Court of Cassation 2nd Civil Chamber, 2018/7735-2018/15422 K).

5. Secondary Source Assessments

Decisions of the Regional Courts of Appeal and Commercial Courts, which are secondary sources, provide additional context regarding the general legal status of digital evidence:

Nature of Document: According to HMK art. 199, WhatsApp communications qualify as a “document” as “data in electronic environment” (Sakarya Regional Court of Justice 5th Civil Chamber, 2024/1325-2024/1312 K

Prima Facie Evidence: For communications to be considered “prima facie evidence,” there should be no doubt about the sender’s identity. Screenshots that cannot be verified by IP number or phone line identification are not relied upon (Supreme Court 3rd Civil Chamber, 2023/287-2023/1549 K

WhatsApp ekran görüntüsü tek başına boşanma için yeterli mi?

Hayır. Yargıtay uygulamasına göre ekran görüntüleri tek başına yeterli olmayabilir. Mesajların doğruluğu ve kime ait olduğu bilirkişi incelemesi ve destekleyici delillerle ispatlanmalıdır.

Eşimin telefonundan gizlice aldığım mesajları mahkemede kullanabilir miyim?

Genellikle hayır. Eğer mesajlar hukuka aykırı şekilde elde edilmişse (örneğin casus yazılım ile) mahkeme bu delilleri dikkate almaz. Ancak ortak kullanım veya açık rıza gibi istisnai durumlar varsa değerlendirme değişebilir.

WhatsApp mesajları zina ispatı için yeterli midir?

Tek başına çoğu zaman yeterli değildir. Ancak mesajlar tanık beyanı, fotoğraf veya diğer delillerle desteklenirse zina ispatında güçlü bir delil haline gelir.

Why You Should Seek Help from an Expert Divorce Lawyer?

WhatsApp and message evidence in divorce cases are technical and critical evidence that directly affect the outcome. However, the biggest mistake in practice is the incorrect presentation or unlawful acquisition of this evidence.

An expert Istanbul divorce lawyer manages the process as follows:✔ Analyzes whether the evidence was lawfully obtained✔ Formulates additional evidence to enhance the probative value of messages✔ Manages the expert witness examination process correctly✔ Creates a strategy to turn the fault distribution in your favor

Especially for those seeking a Tuzla divorce lawyer, Gebze divorce lawyer, Çayırova divorce lawyer, and Kurtköy divorce lawyer, knowing the local practice and court procedures provides a significant advantage. At this point, 2M Law Office, manages the process in the most accurate way with its experience in the use of digital evidence in divorce cases.