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21st October, 2021

Time to Share?

Simon Mawdsley, family law partner at Aaron & Partners looks at your rights to privacy during a divorce.

Simon Mawdsley, family law partner at Aaron & Partners looks at your rights to privacy during a divorce.

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.

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