Family lawyers in Kuwait hear the same story in many versions. A wife arrives with screenshots of her husband's chats with another woman. A husband brings a folder of conversations he copied from his wife's phone while she slept. Both ask the same question: can I use these messages to file for divorce or to win custody of the children? Very few ask the more dangerous question that comes first: was what I did to get these messages a crime that I could be prosecuted for? Suspicion and the sense of betrayal push many people to unlock a spouse's phone, scroll through the chats, photograph them or forward them to their own device, in the belief that marriage gives them an automatic right to see everything the other spouse has.
This article deals with that specific angle: the marital relationship and the partner's phone. It does not repeat the general rules on the evidential weight of electronic messages, which we covered in Proving a case with electronic and WhatsApp messages in Kuwait, nor the rules on secret audio recordings discussed in Recording someone without their knowledge in Kuwait, nor the steps to recover a hacked account. Instead it focuses on two linked questions. When does looking at a husband's or wife's phone turn into unlawful access punishable by law? And what happens to messages obtained this way when they are placed before the Family Court in divorce, judicial separation and custody cases?
We set out the relevant Kuwaiti legislation, distinguish between the different kinds of conduct, from an accidental glance to cracking a passcode, installing spyware and copying or publishing conversations, then examine the debate on whether such messages can be relied on, including the difference between evidence in a criminal case and a presumption in a personal status case. We then explain how the evidence can backfire on the spouse who gathered it, and close with lawful ways to prove your case and what a victim of phone snooping should do, illustrated with hypothetical cases and frequently asked questions.
The Short Answer
Marriage does not cancel the privacy of correspondence. The Kuwaiti Constitution guarantees the freedom and secrecy of correspondence, and Kuwait's criminal laws protect private life without making an exception for husbands or wives. In principle, each spouse's phone, messages and accounts remain protected from the other spouse unless the owner has genuinely consented.
Accessing a partner's phone or account without permission can be a crime under Law No. 63/2015 on Combating Information Technology Crimes, which criminalises unlawful access to devices, information systems and accounts, and treats the offence more seriously where the access leads to data being copied, disclosed or published. The legal assessment differs sharply between someone who happens to see a message pop up on an unlocked phone and someone who cracks the lock code, installs a tracking app, or copies the chats and sends them to others.
Whether such messages are accepted as evidence in divorce and custody cases is not settled by a single rule. One view excludes any evidence obtained unlawfully; another allows the Family Court to treat it as a presumption to be weighed alongside other evidence. The decision rests with the judge in the circumstances of each case. The safer course is always to look for a lawful way of proving your case before you risk evidence that could cost you a counter-complaint, a damages claim and a weaker position on custody.
The Legal Framework
The Kuwaiti Constitution is the starting point. It provides that the freedom of postal, telegraphic and telephone correspondence is protected and its secrecy guaranteed, and that correspondence may not be monitored or its secrecy disclosed except in the circumstances specified by law and through the procedures it sets out. The protection is general and applies to every person; it contains no carve-out allowing a husband to monitor his wife or a wife to monitor her husband. The prevailing view among legal scholars is that the concept of correspondence extends to modern means such as text messages, chat applications and email.
Law No. 63/2015 on Combating Information Technology Crimes is the statute most directly relevant here. It criminalises unlawful access to a computer, an electronic data-processing system, an automated electronic system or an information network, and provides for heavier penalties where the access results in data being cancelled, deleted, destroyed, disclosed, altered or republished. It also addresses intercepting, capturing or eavesdropping on transmissions over an information network without right, and using the network to threaten, extort or violate private life. A smartphone today is an electronic data-processing device in the sense intended by the law, and messaging, email and social media accounts are information systems.
Law No. 16/1960 promulgating the Penal Code remains relevant whenever the conduct goes beyond mere viewing, for instance where messages are used to threaten someone, are published with remarks that attack a person's honour so that defamation or insult offences arise, or where a protected secret is disclosed. The separate law on the misuse of telephone communication devices and eavesdropping equipment is also relevant to the interception and recording of calls without permission.
Law No. 17/1960 promulgating the Code of Criminal Procedure governs complaints, investigation and the gathering of evidence, and determines which authority may authorise the search and seizure of devices. This matters because the lawful route to the contents of another person's phone runs through the investigating authorities, not through the hands of the opposing spouse.
Law No. 51/1984 on Personal Status sets out the grounds for judicial divorce, including harm and ill-treatment, and governs custody on the basis of the child's best interests. Law No. 12/2015 promulgating the Family Court Law regulates procedure in these disputes and the family dispute settlement centres. Law No. 39/1980 on Evidence in Civil and Commercial Matters provides the general rules of proof that apply where no specific provision exists, and Law No. 20/2014 on Electronic Transactions recognises the evidential value of electronic documents and messages, subject to conditions.
Finally, Law No. 16/2020 on Protection from Domestic Violence addresses forms of abuse within the family. Depending on the facts, a question may arise as to whether constant surveillance of a partner's phone, controlling it and threatening to use its contents fall within the kind of abuse that justifies a protection request. That is for the competent authorities and the court to assess in each case; it cannot be stated as a certainty in advance.
The Substantive Rules
1. Marriage is not a waiver of privacy
Many people believe that the marriage contract makes everything one spouse owns visible to the other, and that a wife's phone belongs to her husband or vice versa. That belief has no basis in law. Marriage creates specific rights and duties regulated by the Personal Status Law, such as maintenance, obedience in its legal sense and good companionship, but it does not include a right to search or monitor. Each spouse keeps a separate legal personality, private correspondence, accounts, and professional or family confidences that are not the other spouse's business.
It makes no difference that the husband bought the phone or pays the line bill. Ownership of the physical device is one thing; the protection of its contents is another. A wife's messages with her family, friends or colleagues keep their protection even if the device is registered in her husband's name. The same applies to a husband's work phone, which may hold an employer's confidential information that his wife has no right to see.
2. An accidental glance is not deliberate access
Accidental viewing is part of ordinary married life: an unlocked phone on the table shows an incoming message, a notification appears while one spouse shows the other a photo, or a shared family tablet has an account left signed in. In these situations there is usually no access in the sense intended by the Information Technology Crimes Law, because the person did not bypass any protection or use unlawful means to reach the data. The assessment changes, however, once the person moves from seeing what appeared in front of them to browsing the chats, scrolling between conversations, photographing and copying them. That is where the serious question of permission begins.
3. Cracking or guessing the passcode
When a phone is locked with a code or fingerprint, the lock is a clear expression of the owner's wish to keep others out. A spouse who guesses the code, uses the partner's fingerprint while they sleep, or exploits a code they watched being typed in secret, overrides that wish. In this situation unlawful access is likely to be established, because what counts is the absence of permission, not the technique used to open the lock. Cloud accounts, email and social media are treated the same way: logging in with a password the owner never gave you for that purpose is access without right.
4. Spyware and tracking applications
The most serious scenario is installing an application on the partner's phone that forwards their chats, calls, location or photos to another device, or secretly linking their messaging account to a second device to read messages in real time. These acts do not stop at unlawful access; they may extend to intercepting and capturing communications without right, and to eavesdropping if calls are included. Ongoing monitoring also shows a clear intent that cannot be explained away as coincidence. Very often the monitored spouse eventually discovers the app, and the matter becomes a criminal complaint against the person who installed it.
5. Copying, forwarding and publishing
The position gets worse when the contents of the phone are copied to another device, chats are forwarded to the other spouse's number, or screenshots are sent to family members or posted in groups or on social media. The law treats the offence more seriously where access leads to disclosure or republication of data, and there may also be defamation, insult, invasion of privacy or publication of private images, issues we addressed in Publishing private photos or videos without consent in Kuwait. Sending screenshots of chats to the other spouse's relatives in order to shame them is often legally more dangerous than the original act of looking.
6. Prior consent and shared passwords
Spouses may agree to share passwords, or one may give the other the phone code to use it for a particular task. Consent in principle removes the unlawfulness, but it raises delicate questions. Was the consent general or limited to a specific purpose? Did it survive the start of the dispute, or a change of passcode by the owner? A husband who gives his wife his code to order food has not authorised her to read his private chats, and a spouse who changes the code after an argument has withdrawn any earlier permission. The person relying on consent bears the burden of proving it, which is usually difficult because it was given orally. It is also worth noting that consent to look does not necessarily include consent to copy or publish.
7. A child's phone and family devices
The position differs when a parent monitors a minor child's phone as part of legitimate parental supervision. That falls within guardianship, custody and child protection, consistent with the spirit of Law No. 21/2015 on Children's Rights. But it is no excuse for using the child's device to spy on the other parent, for example by reading the child's chats with their father or mother to collect material for the dispute, or by turning the child's phone into a recording tool. Such conduct may count against that parent when the court assesses fitness for custody, because it drags the child into the adults' conflict.
8. Messages as evidence in a criminal case
In a criminal case, for example where a wife reports her husband for threats or insults and the evidence is messages she took from his phone, the question of lawfully obtained evidence arises in its sharpest form. The settled principle in criminal law scholarship is that a conviction cannot rest on unlawfully obtained evidence, and it is applied strictly where the unlawfulness stems from a step taken by public officials. Evidence obtained unlawfully by a private individual is more contested. One view extends the exclusionary rule to it; another distinguishes it from evidence gathered by the authorities; a third allows unlawful evidence to support an acquittal but not a conviction. The court assesses this in each case. Note also that a criminal court may build a proper investigation on the messages and reach lawful evidence, for instance where the prosecution orders a technical examination of the device.
9. Messages in personal status cases: a presumption, not conclusive proof
Before the Family Court the context is different. In a petition for divorce on grounds of harm, the petitioner must prove harm and ill-treatment; in custody, the court balances the child's best interests against each parent's suitability. Judges in these cases have broad discretion to evaluate evidence and presumptions. There is no single settled answer for messages taken from a partner's phone without permission. Those who favour excluding them argue that the courts must not become a tool for rewarding invasions of privacy. Those who favour admitting them as a presumption argue that family disputes usually concern things that happen behind closed doors, and that messages may be the only way to prove real harm. Between the two, many decisions tend to treat such messages as a presumption that needs corroboration rather than as sufficient proof on their own, with the court itself weighing how lawfully they were obtained.
There is also the technical problem of proof. Screenshots are easy to edit, the other spouse may deny sending the messages, and the court may then need expert technical evidence or an admission. We explained these requirements in Digital and electronic evidence in Kuwaiti law. In short, messages taken from a partner's phone face two hurdles: lawfulness and authenticity. Clearing one of them is not enough.
10. When the evidence backfires
The biggest practical risk is not that the court rejects the messages, but that presenting them amounts to an admission that you accessed the other spouse's phone without permission. Once a husband files screenshots of his wife's chats in divorce proceedings, she is entitled to ask how he obtained them, and she may file a counter-complaint for unlawful access, interception or disclosure, turning the claimant into a suspect. If the offence is established, he may also face a civil claim for compensation for moral harm under the general rules of liability in Law No. 67/1980 promulgating the Civil Code.
In custody in particular, a judge may view systematic spying on the other parent, or broadcasting their secrets to the family, as conduct that reveals a tendency to control and harm, or a willingness to involve the children in the dispute. Those are factors in assessing the child's best interests. Instead of strengthening the parent's position, the messages may weaken it.
Principles of the Court of Cassation
The Court of Cassation has consistently held that assessing evidence and presumptions is within the authority of the trial court, which may rely on what it finds convincing and set aside the rest, provided its judgment rests on reasonable grounds supported by the case file. This principle explains why the fate of messages taken from a partner's phone cannot be predicted in advance: it depends on what the court finds convincing in each case.
In criminal matters, the Court of Cassation has consistently held that evidence derived from a void procedure cannot be relied on to convict, and that the nullity extends to what flows directly from it. What remains debated is how far this principle applies to evidence obtained by a private individual outside any official procedure.
In personal status matters, the Court of Cassation has consistently held that the harm justifying judicial divorce is a matter for the trial judge to assess, drawing on all the evidence and presumptions before the court. It has likewise held that the child's best interests are the governing standard in custody, and that their assessment belongs to the trial court.
The Court of Cassation has also consistently held that informal documents and photocopies carry no evidential weight if the opposing party denies them and the original is not produced. Screenshots are affected by this principle when the other spouse disputes them, unless their authenticity is proved by expert evidence or other means.
Methodological note: the principles above are stated in general terms summarising the prevailing direction of Court of Cassation case law as discussed in legal scholarship and practice; they are not drawn from a specific judgment. We do not cite appeal numbers or dates, because what matters is how a principle applies to the facts of each case, and because judicial trends evolve. The most recent published judgments should be checked before relying on any principle in a pending case.
Practical Steps and Documents
If you suspect your spouse and want to prove it
Stop before you open the phone. Speak to a lawyer before taking any step. What looks like decisive proof may become a liability, and there may be a lawful route that makes it unnecessary. A decision taken in a moment of anger can shape the entire case.
Gather what you can lawfully hold. Messages the other spouse sent directly to you, calls you received, messages sent to family members who agree to share them, witness accounts of abusive incidents, and medical reports where there was physical harm are all evidence that raises no lawfulness issue. Messages addressed to you are fundamentally different from messages exchanged between your spouse and third parties.
Use the court's powers. You can ask the court to take the evidentiary steps it considers appropriate, such as hearing witnesses, questioning the other party, ordering them to produce relevant documents in their possession under the rules of the Evidence Law, or writing to specific bodies. The court is the lawful route to material you cannot reach yourself.
For crimes, rely on the investigating authorities. Where there are threats, extortion, abuse or publication, the route is a complaint to the authorities that handle information technology crimes or to a police station. The investigating authority can authorise examination of devices and request data from service providers through legal channels, reaching the evidence without you bearing the liability.
Do not publish or forward. Even if you already hold messages, sending them to your spouse's family or friends, or posting them, adds liability you do not need. Material for the court is submitted through your lawyer and in the case file, not in family group chats.
If you are the victim of phone snooping
Preserve evidence before deleting anything. If you find an unknown app or a device linked to your account, do not rush to remove it before documenting it. Photograph the list of linked devices, login alerts, and the installed app with its installation date if shown. It is wise to have the device examined by a specialist before resetting it.
Secure your accounts. Change passwords from a safe device, enable two-step verification and disconnect unknown devices. Detailed steps are in Hacked WhatsApp or Instagram account and impersonation in Kuwait.
File a complaint. Complaints can be filed with the authority responsible for information technology crimes or at a police station, with the evidence and, if possible, the device. If you have concerns for your safety, the legal options for protection can be explored.
Object in the family case. If the other spouse files messages taken from your phone, your lawyer can argue that the evidence was unlawfully obtained, deny screenshots that are not accurate, request expert examination, and submit proof of the complaint you filed about the access.
Documents that usually help
- The marriage contract, the divorce certificate if any, and the children's birth certificates.
- Messages and calls you received directly from the other spouse, kept on the original device and not only as screenshots.
- Names of witnesses and what each of them knows.
- Medical reports where there was physical harm.
- Screenshots of linked devices and login alerts if you were spied on.
- A copy of the complaint and its reference if one was filed.
- Any document relating to the children's welfare: schooling, healthcare and living arrangements.
Hypothetical Cases
Case one: a notification on the lock screen
Sara was sitting with her husband when he asked her to pass him his phone. A notification from a woman appeared on the locked screen with inappropriate language. She did not unlock the phone but took a photo of the notification with her own phone. No access to the device took place and no protection was bypassed, because the notification appeared in front of her by chance. Whether the photo can be used in court is for the judge, and in this scenario it is closer to being accepted as a presumption than in the others. But on its own it is a weak presumption, since it proves no more than that a message arrived. She would be better served by supporting it with other evidence of the harm she claims in a divorce petition; see Divorce in Kuwaiti law for the grounds of judicial divorce.
Case two: the fingerprint during sleep
Khalid suspected his wife, used her fingerprint while she slept to unlock her phone, photographed dozens of chats and sent some to her brother. When he filed for custody he submitted the photos. His wife objected and filed a complaint for unlawful access and disclosure. Khalid faces potential criminal liability, because using the fingerprint without consent overrides the owner's will, and sending the chats to her brother is disclosure. The Family Court may exclude the photos or give them limited weight, and may see in his conduct something that affects the assessment of the children's best interests. He would have done better to consult a lawyer and look for lawful evidence. For the custody criteria, see Custody and maintenance in Kuwaiti law.
Case three: a hidden tracking app
Noura noticed that her husband knew where she went and what she discussed with her friends. She had her phone checked by a specialist, who found an app sending data to another device. She kept the specialist's report and photos of the app, filed a complaint and petitioned for divorce on grounds of harm. Here Noura is the injured party, her evidence is lawful because it concerns her own device, and the complaint opens an investigation through which the authorities can lawfully reach the other device. The court may find that constant surveillance amounts to harm justifying divorce, depending on its overall assessment of the facts.
Quick Comparison
- Seeing a notification that appeared by chance: usually no access; a photo of it is a weak presumption for the court to weigh.
- An unlocked phone left on the table, then browsing its chats: a grey area; permission is decisive, and the risk grows with lengthy browsing and photographing.
- A code given by the owner for a specific purpose: consent is limited to that purpose; going beyond it may be access without permission.
- Cracking or guessing the code, or secretly using a fingerprint: unlawful access is likely to be established.
- Installing spyware or secretly linking the account to another device: the most serious scenario, which may include interception and eavesdropping.
- Copying chats and sending them to family or publishing them: aggravated liability, possibly with defamation, insult and privacy offences.
- Messages the other spouse sent directly to you: lawful evidence; authenticity and attribution still need proof.
- Evidence obtained by the investigating authority with authorisation: the safest route, relied on in both types of case if the procedure was valid.
Frequently Asked Questions
Does a husband have a legal right to search his wife's phone?
No. Kuwaiti law gives neither spouse a right to search the other's phone. The freedom and secrecy of correspondence are guaranteed to everyone, and marriage does not waive them. The rights marriage creates, such as obedience and good companionship, do not extend to surveillance.
Can a wife read her husband's messages if she suspects infidelity?
Suspicion does not justify accessing the husband's phone without permission, and the rule is the same for both spouses. The lawful route is to gather available evidence by lawful means or to turn to the court or the investigating authorities.
Is seeing a message that popped up on the screen a crime?
An accidental glance, without bypassing any protection or using any means to reach the data, is not usually unlawful access. What you do next, such as photographing chats, scrolling through them or publishing them, may change the assessment.
My husband gave me his phone code. Can I use it?
It depends on the scope of the permission. If he gave you the code for a specific purpose, it does not extend to reading his private chats, and if he changed it after a dispute he withdrew his permission. The person relying on consent must prove it.
Will the Family Court accept screenshots I took from my partner's phone?
The question is contested and left to the judge. Some exclude unlawfully obtained evidence, while others accept it as a presumption requiring corroboration. In any event the other spouse may deny the screenshots, request expert examination and argue that the evidence is unlawful.
What is the difference between evidence in a criminal case and a presumption in a personal status case?
In a criminal case the lawfulness of evidence is scrutinised more strictly because conviction and punishment are at stake, and the rule is that a conviction cannot rest on unlawful evidence. In a personal status case the judge has wider latitude to infer facts from presumptions, but still may not rely on what he does not find convincing.
Can my partner file a complaint against me if I submit their messages in court?
Yes, and this is one of the main risks. Submitting the messages may reveal how you obtained them, and the other spouse may file a complaint for unlawful access or disclosure and claim compensation for moral harm.
Can spying on the other parent's phone affect custody?
It can. The court weighs the child's best interests and each parent's suitability, and may view systematic spying, broadcasting secrets or using the child's phone for surveillance as conduct that weakens a parent's custody position.
I found a spy app on my phone. What should I do?
Do not delete it before documenting it. Photograph it and the linked devices, have the phone examined by a specialist, secure your accounts, file a complaint with the competent authority with the evidence, and consult a lawyer about the effect on any ongoing family dispute.
Are messages my husband sent to me lawful evidence?
Yes. Messages addressed to you raise no privacy issue in how they were obtained, because you are a party to them. You still need to prove their authenticity and that he sent them, and it is best to keep them on the original device. They may even have direct legal effect, as discussed in Divorce by WhatsApp or text message in Kuwait.
Can I ask the court to order my spouse to produce their chats?
You can ask the court to take the evidentiary steps it considers relevant, including ordering the other party to produce documents in their possession under the conditions of the Evidence Law; the decision is the court's. For crimes, the route is the investigating authority, which can authorise examination of devices.
Is tracking my wife's location through her phone a crime?
Tracking location through a secretly installed app or through an account accessed without permission is among the serious scenarios in which liability may arise. Location sharing agreed between spouses is lawful as long as the consent continues.
My spouse posted my chats in the family group. What are my rights?
You can file a complaint about the access, the disclosure and the publication, together with any defamation or insult involved, and claim compensation. Document the posts before they are deleted and note who saw them.
Conclusion
Marriage is a partnership in life, but it is not a surrender of legal personality or of the privacy of correspondence. Kuwaiti law, from the Constitution through the Information Technology Crimes Law and the Penal Code, protects each spouse's privacy from the other just as it protects it from strangers. The legal assessment runs from the accidental glance, which usually raises no liability, to cracking codes, installing spyware and copying or publishing chats, conduct that can turn the person looking for evidence into the accused.
Before the Family Court there is no guarantee that messages taken from a partner's phone will be accepted. The question is contested, the judge assesses the evidence, its lawfulness and its weight in each case, and the messages must clear both the lawfulness hurdle and the authenticity hurdle. Their negative effect on the person who submits them, through counter-complaints, damages claims and the custody assessment, may outweigh any benefit in proving what they allege.
The practical advice is therefore clear: do not build your case on your partner's phone. Collect what was sent to you directly, rely on witnesses and reports, ask the court to use its evidentiary powers, and turn to the investigating authorities where a crime is involved. If you are the one being monitored, preserve the evidence, secure your accounts and file a complaint. In every case, consult a lawyer before taking a step that is hard to undo. For more on personal data, see Publishing my phone number or personal data without consent, and on the limits of surveillance around the home, A neighbour's camera filming my house in Kuwait.
Legal Notice
This article provides general legal information and is not a substitute for specialist advice on your situation. Whether access was unlawful and whether messages can be relied on depends on the facts and evidence of each case and on the assessment of the competent court, and the contested questions discussed here are not settled by a single rule. The article deliberately contains no article numbers, time limits or amounts; the provisions in force and the latest judgments should be checked before taking any action.
If you are facing a family dispute in which messages or a phone are at issue, or you have been spied on through your device, you can contact Yumnaak Law Firm or book an appointment at our office so we can review your situation and build a lawful evidence strategy that protects your rights without exposing you to liability.
