Over the weekend a certain national newspaper ran a story under the headline: “Couples getting a divorce risk going to jail if they open each other’s post or spy on emails, lawyers say”.
Whilst this may not exactly be news, it does act as a reminder to anyone involved in divorce proceedings: don’t be tempted to open your spouse’s mail, in the hope of finding that they have hidden assets somewhere, against which you can make a claim. And that goes for their email as well, along with any other of their private documents, whether in paper or digital format.
It’s all too easy to fall for the temptation, especially if you and your spouse are still living under the same roof. There is their mail, laying on the doormat, inviting you to open it. And if your spouse finds out, you can just say you opened it in error. Or maybe you still have access to their email account, or you still know the password they use on their computer. What is to stop you from taking a peek?
Well, quite a lot, actually. What’s more, you’re not going to benefit from anything you find.
That was not, however, always the case. Until 2010 the family courts followed the ‘Hildebrand rules’, which set divorcing couples apart from the rest of the population, by saying that, provided they did not use force to obtain them, they could take and copy documents belonging to the other party, as the duty of the parties to make full disclosure of their means overrode the principle of confidentiality. The Hildebrand rules, which dated back to a 1992 case by that name, were generally well liked by family lawyers, who felt that they acted as a useful tool against any party who tried to hide their assets from the court.
In 2010, however, all that changed. In that year the Court of Appeal decided the case Tchenguiz & Others v Imerman, now known simply as ‘Imerman’. As I have explained here previously, Imerman swept away the Hildebrand rules, making it clear not just that parties were not entitled to ‘purloin’ confidential documents belonging to their spouse, but also that if they did they could not use any information gained from the documents in the proceedings. Imerman has been described by some as a ‘cheat’s charter’, allowing spouses to get away with hiding assets. Whether that is so or not, it is the law, and it is essential that all involved in divorce proceedings understand it.
Which brings me back to that newspaper story. In it, a certain specialist family law firm make the startling admission that in just over 20 per cent of their cases “clients admit opening their partner’s mail, logging on to their computer or rifling through business files left in the attic of the marital home while searching for details which they feel might help their case on divorce”. Needless to say the firm advises their clients that they are not allowed to do any such thing, but even so more than one in five is an astonishing figure.
Now, things may have changed since I stopped practising back in 2009 (certainly, the use of digital documentation has increased in that time), but I don’t recall many of my clients telling me that they had accessed confidential documents belonging to their spouse. Certainly it was nothing like one in five of my clients. If it really is that sort of proportion, then the problem is much more serious than I had thought.
This leads to two things. Firstly, it emphasises the need to remind people that accessing confidential documents should be avoided at all costs (hence this post). However, the other thing is surely the need to scrutinise the source of any information about your finances that your spouse refers to in the proceedings. Where did they get that information? Did they get it illegally? Should they be allowed to rely upon it in the proceedings? And, in extreme cases, should they be liable to some criminal sanction?
And that finally brings me to the main point of the newspaper headline: looking at confidential documents can potentially have criminal consequences. The story refers to the possibility of the culprit receiving a two-year jail sentence under the Investigatory Powers Act. That Act was not passed until 2016 and was not therefore a factor in the Imerman case, but nevertheless it was recognised back in 2010 that ‘the surreptitious removal of papers’ may involve the commission of a criminal offence. I have to say that I don’t recall hearing of a party to divorce proceedings receiving a criminal conviction for accessing confidential documents belonging to their spouse, but nevertheless the possibility is surely another reason to refrain from such behaviour.