By Randal Buckley
in All Blogs
, Family Law
Category on December 24th, 2013
It is often very tempting for a husband or a wife that are considering separation and divorce to look through their spouse’s personal papers or email etc. Such activity is almost always unlawful and some of it, particularly relating to the misuse of computers, is a criminal offence.
The High Court has recently provided guidance for this thorny issue:
- It is simply – unlawful for a wife (for it is often the wife) to breach her husband’s privacy by furtively copying his documents whether they exist in hard copy or electronically.
- If a wife does access such private documents she is not only faces criminal penalties but also risks being sued in a civil court by the husband for breach of confidence and misuse of his private documents e-mails etc.
- If a wife supplies such documents to her solicitor then the solicitor must not read them. Instead the solicitor must collect them and send them to the husband’s solicitor, who has a duty to the Court to disclose all admissible and relevant documents.
- If the husband does not have a divorce solicitor the wife’s solicitor must retain the documents, unread, and in a sealed file, and must approach the court for directions.
- The wife is permitted to rely on her knowledge of the documents to challenge the truth of the husband’s case; her knowledge is acceptable as evidence but and it’s a big but, only if she came by the documents legitimately.
- If the wife’s recollection is that the documents clearly show that the husband is unjustifiably spending or hiding assets then she can inform her solicitor of this but she would have to candidly reveal that her knowledge derives from illegitimately obtained documents and she must explain how she got them. She must do this even if this leads to a civil suit or criminal proceedings. That is the price that she will (potentially) have to pay for making an application based on illegitimately obtained knowledge. Of course, there is no question of the wife being forced to incriminate herself as she has a free choice whether to go down this route. No one ever said its all fair in love and divorce.
This is a complex and difficult area, so it is always best to consult an expert divorce solicitor before acting. If you would like to speak to me about this or any other aspect of family law, please ring me on 020 8956 2655 or contact me at firstname.lastname@example.org.