You risk more than your money if you snoop where you shouldn't
Divorce is a stressful time for all those involved, and often there is a strong desire for one party to obtain “proof” that the other party has misbehaved, perhaps wanting to prove adultery or more often the concealment of financial assets.
This is to a large extent understandable but for members of the Police in particular, caution is your watchword; snooping where you shouldn’t could put you at risk of a police investigation if your other half decides to make a complaint.
It’s important to bear in mind that when it comes to the point in a divorce or dissolution where money is discussed, both parties are under a duty to provide full and frank disclosure of their financial positions. Once the parties complete financial position has been disclosed, their solicitors are able to advise on a fair and reasonable offer of settlement.
But separating couples must always bear in mind that they can’t go rifling through their other half’s possessions, looking for proof of, for example, an offshore account. It is true that in the past, if one party feared that their spouse would not provide full and frank disclosure, the Family Courts wouldn’t penalise the often financially weaker party for searching their spouse’s personal and private documents to try and uncover the true position. This was on the basis that any documents they wished to rely on were copied and immediately returned to their spouse or to his/her solicitor. Thus a party who attempted to deceive their partner by concealing assets in an offshore account could risk their partner finding private documents which could be used as evidence in financial proceedings. Whilst this was never condoned, even documents wrongly obtained could be admitted as evidence.
This, however, is no longer the situation. Since the recent Imerman case it’s now a breach of your spouse’s right to confidentiality to rifle through their private and confidential documents, and the Court will restrict the use of any information as evidence if it’s uncovered by snooping through your spouse’s emails, listening in on their phone calls or opening mails addressed to them. Furthermore, this case confirms that a party now risks both criminal and civil sanctions.
No clear guidance as to when a document will be confidential has yet been provided. In this case the court took the view that a document may lose its confidentiality if it is left lying around the house. But Family Law solicitors will still advise caution, as confidentiality is not dependent upon locks, keys or their equivalent being used, as a duty of confidence could arise between husband and wife even when documents are not marked to be confidential. In the Imerman case the Court also held that a document would be confidential if its contents are, or ought to be, appreciated to be confidential by the party who took or copied the document.
Instead, the Court has encouraged parties to take advantage of applying to court for a search order and/or a freezing injunction to help prevent dissipation and concealment of assets or the destruction of documents. These orders allow one party to enter premises to search and remove evidence before the other party has an opportunity of destroying evidence of potential assets. In practice this means that if a party suspects that their spouse is being dishonest they need to act quickly to obtain the permission of the court to search their confidential documents. However, the financial cost of applying for and carrying out such orders is significant, and an evidential burden must be satisfied.
The consequences of this ruling are far reaching. A spouse who is concerned that their partner is concealing assets no longer has a “self help” remedy available to them. What’s more, the Court might stop a client continuing to instruct lawyers who had seen these so-called “self-help” documents so one party might find themselves having to search for a different lawyer which during something as stressful as a divorce is hardly ideal.
But that’s not all. Just to complicate matters further, the Court also went on to say that a judge has the discretion to admit documentation as each case needs to be determined on its facts.
Ultimately, this means that if you are someone about to embark on a divorce or dissolution, be careful. You will almost certainly need specialist legal advice in order to determine what measures can be taken to obtain disclosure.
Remember the duty of confidentiality that exists between partners/spouses and don’t go helping yourself to documents or information willy nilly because intercepting information on a computer, copying or passing on electronic information is likely to be a criminal offence under the Computer Misuse Act 1990. For someone who is also a serving Police Officer, pleading ignorance simply won’t wash. Your relationship may be over, but there is no reason why your career should be too, as long as you exercise caution.
If you have your heart set on a particular lawyer acting for you, you must never forget that he or she is unlikely to be able to read any original or copy documents or emails belonging to your partner or spouse. The best course of action is to tell your lawyer what you know or suspect before you do anything – then that lawyer can discuss with you how to go about legally obtaining those documents.
Your lawyer will always want to obtain the best possible settlement for you – don’t jeopardise that settlement by going down the helping yourself route.
