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GETTING DIVORCED ? RESIST THE TEMPTATION TO ACCESS THEIR PERSONAL DOCUMENTS
by Victoria Syvret , Senior Associate of Family Law at Aaron & Partners
The recent High Court judgment that Sheikh Mohammed Al Maktoum interfered with British justice by ordering the hacking of the phone of his ex-wife , Princess Haya of Jordan and her solicitors during their divorce proceedings , is an extreme example of someone striving to obtain information about their estranged spouse . The case highlights the risks parties to a divorce now face in a modern world where technological advances enable unscrupulous individuals to access data that will enable them to advance their position during contentious proceedings .
Whilst we all have to be aware of how we share our data and the potential for security breaches , the issues surrounding confidential documents and obtaining information during divorce and financial remedy proceedings are not new concepts for the Court to grapple with .
The end of a relationship is often accompanied by a complete breakdown in trust between the parties . The initial stage in any case is for the parties to provide full and frank disclosure of their respective financial positions . One or both of the parties often remain sceptical about whether the other is being honest and transparent with their disclosure . The temptation to covertly gather information about the other ' s financial affairs is often too difficult to resist . Parties can feel they should be able to help themselves to the other ' s private documents , even though such actions usually amount to a significant infringement of the other party ' s rights to privacy and confidentiality . Sometimes , so-called ‘ self-help ’ could also amount to a criminal offence .
For many years the Courts tolerated spouses who helped themselves to , or copied , confidential information , provided that the information was readily available , and no criminal damage
had been caused in obtaining it . Provided no filing cabinets had been broken into , or password protected computer hacked , the spouse had almost carte blanche to do as they pleased . However , that position changed in 2010 following the Supreme Court case of Tchenguiz and Ors v Imerman as the Court reasserted the fundamental rights to , and principals about , privacy . The courts clarified that neither party was to access , copy or remove private information which belonged to the other . Just because a husband or wife has an obligation to disclose financial information this does not mean that they lose the right to privacy in that information or documentation . What is confidential will be fact-specific on each case . For example , if a bank statement is left on the kitchen table you are unlikely to be able to successfully argue that the document was private .
Practically , if you are getting divorced you should resist the temptation to seek out or access financial information or documents belonging to your spouse . If you do obtain such information then the documents must be returned to their owner , which will trigger the owner ’ s obligations to disclose them . If such disclosure is not then forthcoming , the spouse who wrongly obtained the documents is entitled to rely on their recollection of their contents , which will no doubt assist the court in determining the true financial position .
For further information contact :
Victoria Syvret Aaron & Partners Call : 07583 089 903 Email : victoria . syvret @ aaronandpartners . com
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