21 JUL 2014
David Hodson on International Family Law: Marital eroticism on marital separation
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
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and own privately recorded nude images could be withdrawn on the grounds of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
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.
Article continues below...
Specifically written to assist the family lawyer acting for Indian clients
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
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
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
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.