Sarah Hughes, Solicitor |
Shelley Cumbers, Solicitor |
How many of us have been on the telephone to a client and heard the words Facebook, Twitter, or MySpace?
With the modern trend of social networking, online chat rooms and instant messaging becoming ever popular, it was only a matter of time before family lawyers had to start addressing these issues in their modern day to day working lives.
The Telegraph has recently commented on how the popular social networking site Facebook is fuelling modern divorces and cites research carried out by Divorce-Online which shows that almost 1 in 5 petitions refer to Facebook, with flirty emails and messages sent on the website being one of the most commonly cited examples of unreasonable behaviour. Facebook, for those of us who are not familiar, is a global social networking website that allows its members to create and customize their own profiles with photos, videos and images about themselves, and network with other members, through wall posts, private messages or instant messaging. It was originally set up in February 2004 to be used exclusively for students at Harvard and Yale, but has rapidly grown in popularity and is now open to anyone over the age of 13, with currently over 350 million active members worldwide.
Previously if a client suspected their spouse or partner of cheating then they would have to resort to following them inconspicuously, spying on them, tracking their whereabouts, interrogating their friends and work colleagues, waiting for the postman to arrive so they could try to intercept their mail, trying to catch them on camera, or even going to the expensive lengths of hiring a private investigator. However, nowadays things are a whole lot easier as all clients have to do is switch on their computer to access sites such as Facebook and Twitter to be confronted with wall posts, online chat, photographs and status updates informing them that their other half is "now single" or "in a relationship", and for those with internet enabled mobile telephones, these applications and text messages make it even quicker, easier and cheaper for clients to “follow” their partner or spouse and keep up-to-date with what they are doing on a regular basis.
Emma Brady was a victim of this when, as The Mail Online recently reports, she logged on to Facebook to see that her husband had posted a message to say "Neil Brady has ended his marriage to Emma Brady". The Mail Online refer to this as the "world's first divorce by Facebook" and explain how Emma Brady had no idea that her husband even wanted a divorce, only finding out when a friend, who had read the post on the social networking site, telephoned her to ask what had happened and to ask if she was ok.
It will not come as a big surprise to those practicing family law that social networking sites and modern means of communication, such as email, are not only featuring in relation to divorce petitions based on adultery or unreasonable behaviour, but also in many other areas of our work. Text messages are already a common feature in all types of family work whether in matters concerning private children issues such as contact and residence applications, i.e. when one parent sends the other text messages refusing to facilitate contact (or even the children themselves sending texts to, or on behalf, of the other parent), injunction applications for non-molestation or occupation orders, i.e. where threats are made by way of text message, or in finances when ancillary relief proceedings are issued and text messages are sent threatening that the other party will not be getting their hands on any of their money. It is therefore very easy to see how these issues are now being transferred to the online world by way of email and social networking sites.
Another social networking website with potentially significant implications for family law is Twitter. For those of us who do not ‘tweet’, Twitter is a micro-blogging site which enables users to "follow" friends, family and their favourite celebrities by reading their profiles which contain short messages of up to 140 characters in length (known as "tweets") detailing what they are doing in real life, such as where they are and what they are up to. As Twitter explains on its official website, it "is a real-time network powered by people all around the world that lets you share and discover what's happening now". In cases where clients are trying to establish jurisdiction on the basis of domicile or habitual residence, it is easy to understand why many may wish to resort to Twitter as a means of resolving such issues, as evidence of the country their spouse has been ‘tweet’ing and therefore the country in which they have been residing. As we all know, the issue of jurisdiction can often make a significant difference to the financial settlement our clients will receive on divorce and it may be that in the future, we must consider advising our clients to ‘tweet’ with care, particularly when they are facing a potential jurisdiction dispute. This shows how the "worldwide web", just as its name suggests, can quite easily prove a useful tool not only cases within England and Wales but those with an international dimension also.
Furthermore, when taking initial instructions in respect of the preparation of a divorce petition we (the writers) have often had clients inform us that, whilst they no longer know their spouse's home or work address, they do have access to the other party’s social networking profile and email address and ask whether documents can be served that way, including via wall posts on Facebook which could be viewed by the other party’s friends and family. This may be taking it a step too far for now, but the Courts are increasingly allowing documents to be served by email as an effective method of service. Given the extent to which we now use email communication, and our significant reliance upon it as an efficient means of sending information, it is very likely that the Court will increasingly be invited to allow service by email and perhaps a time will come in the near future when the Court will allow documents to be served by email as a matter of course, without requiring the Court’s prior permission.
Other examples of when social networking sites have featured in our day to day work include a client who has seen status updates, comments, wall posts and emails sent on Facebook which they forward to you in support of an application for an injunction, which show the other party boasting about having behaved particularly violently, and then ‘friends’ of that person congratulating them on their actions. Seeing such things on the internet can be almost as upsetting to the client as the violence itself. Also, there are clients who have seen photographs, videos, or picture messages downloaded onto the internet from cameras or mobile telephones which show their former partner enjoying a lifestyle way beyond the financial means disclosed in their Form E for the purpose of ancillary relief proceedings, i.e. sunning themselves on a yacht in St Tropez. Similarly, in leave to remove cases, or on the flip side, applications for prohibited steps, one parent can be seen to declare online their intention to move abroad, prompting the other to seek legal advice.
With ever improving technology and the popularity of I-Phones and Blackberry’s it seems that the phenomenon of the internet and increasing access through modern forms of communication is going to continue to grow and grow, with clients accessing this information, just by picking up their mobile telephone. You only have to have glanced at a newspaper recently or listened to the news to learn the latest revelations in the celebrity world of sportsmen, musicians and television personalities being caught out in this way, through sending inappropriate text, picture messages, or emails on their mobile phone (known as "sexting"), which then result in messy and highly publicised relationship breakdowns. Such celebrities to recently fall victim to this modern trend include Tiger Woods, Vernon Kay and of course, Ashley Cole. And it is not just the “A-list celebrities" who are hitting the headlines, but politicians too (somewhat unusually, in a more positive way) with The Guardian reporting recently that Sarah Brown has been crowned Britain's highest profile Twitter user with more than 775,000 followers, beating the likes of Stephen Fry and other popular media figures.
So what does this all mean for the future of family law? Do we need to alter our practices to meet these changes? Do the Courts need to pay more attention to social networking sites? Despite the recent concerns in the press about the risks and dangers of social networking sites, it seems in our view that this is fast becoming the way of the future and family lawyers must acknowledge their importance and prevalence in an increasing number of their clients' lives. Many law firms are already recognising the importance of social networking sites in the business arena with fee earners signing up to professional networking sites such as LinkedIn. However, these sites are just as important to our clients in their personal lives and we need to ensure that they are fully advised on the wide reaching implications their actions on social networking sites may have in anticipated future family proceedings. Therefore, it is very likely that our practices will need to evolve in line with the ever changing technology and means of communication and consequently, our advice must be tailored to meet these changes. Perhaps a time will come in the not too distant future when a request from a client to serve proceedings whether in relation to divorce, ancillary relief, children or otherwise, via a social networking site or text message will not be seen as unreasonable, although how receptive the Courts will be to any such application remains to be seen.
For further information email Sarah Hughes or email Shelley Cumbers or call 020 7940 4000.
