Margaret Hatwood, Partner
Email Margaret
A recent survey revealed that one in ten men and one in five 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, and other sophisticated methods.
The courts dealing with family cases are seeing increasing numbers of such cases. In some, spouses are looking for evidence of hidden financial assets. In others they are trying to obtain proof that a spouse is being unfaithful.
In brief, you should not access any confidential information or documents belonging to your spouse/partner without their permission. This includes opening their mail, examining documents (including those on a computer) and making, retaining and/or supplying copies of a document to a third party. If you engage in any of these activities, then it is potentially a ‘breach of confidence’ which could carry substantial risks including a civil claim/injunctions/costs order, a possible reduction in your overall financial settlement and, in some cases, criminal prosecution.
In the past, the courts had tacitly condoned ‘self help’, referring to any documents accessed as ‘Hildebrand’ documents, after the name of a case decided in 1992. In Hildebrand the parties had separated and the husband admitted that he had made several visits to the wife’s property during which time he had made copies of his wife’s financial documents. The judge held that the parties in financial proceedings are under a duty to make a full and candid disclosure of documents voluntarily and to provide the court with information concerning all the circumstances. The husband was ordered to disclose all the documents that he had taken and to give a promise that he would not enter the wife’s home again. However, the Hildebrand case later became the justification for a process which appeared to turn a blind eye to the improper obtaining and use of documents as long as no force was used, no originals were retained and as long as disclosure of the documents was made to the party during the court disclosure process.
It should be noted that many of the activities employed to obtain information would be criminal offences.
If you believe that your spouse/partner may be accessing your e-mails or documents, seek advice from specialists. There are various checks which can be carried out which may reveal if someone is accessing your computer documents. Secondly seek legal advice as you may be able to obtain an injunction against your spouse in appropriate cases.
Some practical advice:
- Discontinue the use of any shared computer.
- Change your passwords - make sure you don’t use any passwords in common with your spouse/partner.
- Consider opening a new e-mail account for communications with your solicitor and others.
You should note that even what may seem to be a relatively innocuous activity (such as opening a spouse’s post) can be a criminal offence.
Therefore, before you take any ‘self-help’ measures, be sure to take legal advice before doing anything that could result in you being penalised by the court or prosecuted.
In one recent case involving the “man from Del Monte”, Mr Imerman, the wife’s brothers (the Tchenguiz brothers) accessed the husband’s file server (the husband and brothers shared an office) and printed large quantities of documents. The rationale behind this was that the wife’s brothers thought the husband was unlikely to fail to disclose all his assets in the ensuing divorce financial proceedings. The brothers claimed that the reason they accessed the documents was because the husband had allegedly said that his wife would not be able to find his money as it was “well hidden”.
In the Imerman case, the Court of Appeal took the view that the duty to disclose assets only arose once a spouse had applied for financial relief. In this case the brothers’ activities had been carried out before the issue of financial proceedings. The husband’s documents were returned to his solicitors and his solicitors had to read the documents so they could advise him about his disclosure obligations. However, the Court of Appeal said that Hildebrand remained good authority for the timing only of when documents improperly obtained need to be disclosed to the other spouse. The court said it was not permissible for a party to interfere with their spouse’s documents whether they be on computer or in printed form and frowned on the brothers’ activities.
This case caused concern amongst family lawyers as it is not unusual in family cases for assets that belong to one party only coming to light when the other party comes across an incriminating document. This might be a document lying around the family home, or it may be a document on a computer which reveals an asset of which the other spouse was not aware.
Many family lawyers believe that this case will make it much more difficult for family cases to be resolved. The Court of Appeal’s suggestion that family lawyers apply for search orders is not a practical solution in most cases as it is a very draconian and costly process.
Margaret Hatwood is a Partner in Anthony Gold's Family & Divorce Law team. For further information email Margaret Hatwood or call 020 7940 4000.
