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David Hodson on International Family Law: Marital eroticism on marital separation

Date:21 JUL 2014
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The draft 'financial remedies' consent order authorised for the English family courts has, perhaps unsurprisingly, not included provisions which were an issue recently before the German family courts, and is probably a concern to more clients than family lawyers worldwide realise.

In essence, what happens on separation to intimate photographs taken during the marriage? The decision of the Higher Regional Court of Koblenz concerning a couple from the Lahn-Dill region of Hesse in central Germany may help family court judges and lawyers around the world

The court held that ex-lovers including of course separating spouses should on request delete intimate or nude photos and videos taken of their former partners when a relationship ends. The court ruled that one person’s right of privacy outweighed another person’s ownership rights to intimate photos taken during the relationship.

In the case, the woman had given her consent to her partner, a photographer, to make erotic videos and take many intimate photos. She had even taken some of the photos herself. When the relationship broke down, she demanded that he delete the photos in which she appeared.

The court upheld her application. It said consent to use and own privately recorded nude images could be withdrawn on the grounds of personal rights, which are valued higher than the ownership rights of the photographer.

The former partner did not have to delete photos and videos in which the woman was clothed as these had 'little if any capacity' to compromise the complainant.

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Despite apparent increasing habits of nude selfies and sexting as well as the much easier opportunity for storing digital photographs, this is an issue which is rarely spoken about by clients and yet is probably a real concern to quite a number. Websites have gained notoriety for publishing intimate photographs of former lovers, partners and spouses. It has been condemned publicly in various places.

In a recent case in this practice, the wife insisted that on separation a family member with IT experience was present while the husband deleted all intimate photographs of the wife that he had saved, with her then consent, on his computer.

IT expertise is important as merely deleting is sometimes not sufficient to destroy entirely from the hard disk. Copies may also have been retained on other electronic medium. This is why an order is needed to confirm nothing remains and nothing will be subsequently used and that any breach will have financial as well as other consequences.

In as far as publication of such photographs or videos may affect reputation and standing, it has a financial aspect and therefore quite appropriate for inclusion in a financial order.

How the family lawyer raises the issue will require much tact and sensitivity because many clients may be themselves too coy to mention. Yet clients may be very anxious and want a sympathetic hearing from the lawyer

Of course and as an aside, family law law historians will immediately think back 50 years to 1963 and the celebrated divorce of the Duke and Duchess of Argyll and especially the infamous role of the so-called headless man. In pre-Imerman days, and when the Duchess was allegedly in New York, the Duke allegedly employed a locksmith to break into a cabinet belonging to the Duchess and there discovered photographs of the Duchess, allegedly naked apart from her usual three strands of pearls, in a compromising position with a naked man fully revealed except for his head. Even without social media, speculation as to his identity was rife. Now 50 years later, the medium of the photography may have changed but the relevance for our clients of these residues of the relationship remains.

The case in Germany was originally reported in Time magazine and republished in the Law Society Gazette of New South Wales for which I acknowledge thanks.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.