A recent survey revealed that 1 in 10 men and 1 in 5 women access their partner's computers, viewing e-mails and other documents. Actions range from glancing at a loved one's computer when they are away from it, to accessing e-mail accounts using passwords that may be used in common or through other more sophisticated methods.
So imagine this scenario...
A married couple decide to separate and have each instructed solicitors to deal with the divorce and associated finances. The couple are still living under one roof. When the wife gets home one evening, she finds her husband's briefcase on the hall table. She decides to open the briefcase and finds some financial documentation belonging to her husband which she then takes to her solicitor. The question is, can the wife's solicitor use the documents or must they be returned?
In the past, family courts have not penalised the taking, copying and immediate return of documents belonging to a spouse within family proceedings. Such documents have then been used as evidence in court. However, following the recent Court of Appeal decision of Imerman, family law practitioners are now advising their clients that they should not be snooping for documents belonging to their spouse under any circumstances.
In the case of Imerman, the court highlighted the offences that one may be committing by the improper taking of documents including:
- Breach of confidence
- Trespass of goods
- Breach of Article 8 (Right to privacy) Under Human Rights Act 1998
- Criminal Offence under the Data Protection Act 1998
Penalties include the court refusing to allow the information that has been obtained to be used in Court, making an order that the person who has improperly obtained the information change his/her solicitors or making an order for costs against that person.
The court has made it clear that the appropriate form of action to be taken, where a person suspects that their spouse has not been wholly truthful about their financial position, is to obtain a search order. A search order enables a person to search for specific material and obtain a copy of it. Alternatively, a spouse could obtain a court order to restrict the disposal of a particular asset until the end of the proceedings or an order freezing assets where a spouse is concerned that their interest is under threat. However, the court will only make an order where it is proportionate to do so and there is significant evidence to establish that such action is necessary.
In light of the risk of possible civil and/or criminal law sanctions for a person who improperly obtains documents belonging to their spouse, it is unlikely that solicitors will do any thing other than advise their client to return the documents immediately thus avoiding any potential backlash!
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