helping yourself to documentation in divorce proceedings
In the 'digital era' where we communicate by email, save our
documents on our hard drive and can transfer data onto a memory
stick with the click of a button, how far can a suspicious spouse
go towards obtaining, and then using, electronic information
obtained during divorce proceedings?
During the settlement process there is an obligation on both
parties to give full and frank disclosure of their financial
circumstances, to include both assets and liabilities. If the
parties are unable to reach agreement as to the division of these
assets and any relevant spousal maintenance, the Court will make an
order at the final hearing.
However it is often the case, particularly in high asset
divorces, that one party is worried that the other is concealing
the true extent of their financial position. The suspicious spouse
may feel there is non-disclosure and concealment of information
that prejudices their position. In these circumstances, copying
electronic documents or checking emails may seem appropriate in the
interest of ensuring that full and frank disclosure has been
made.
Nevertheless, intercepting, copying and using electronic
information belonging to another may have both civil and criminal
consequences. Under the Computer Misuse Act 1990 the Court can
impose a fine or a penalty of up to six months imprisonment for
unauthorised access to computer material; this could include for
example obtaining access by 'guessing' the password to an
account.
Further, there could be Human Rights implications for both
parties. Firstly, Article 6 of the European Convention on Human
Rights provides that there must be 'equality of arms' during any
Court proceedings. In others words, one party should not be at a
disadvantage vis-à-vis his opponent and he or she is therefore
entitled to have access to any information that may affect their
case. Secondly, Article 8 provides that everyone has the right to
respect to private and family life and this would include privacy
in terms of documents created electronically.
The case of Hildebrand v Hildebrand (1992) predated the
electronic age. It concerned documentation obtained by Mr
Hildebrand from Mrs Hildebrand's private document box in the formal
matrimonial home as well as further documentation obtained from Mrs
Hildebrand's new home. The documentation was simply photocopied and
the originals were returned. The Court held that the information
contained in these documents could be used despite the fact that
they had been obtained without Mrs Hildebrand's consent.
More recently, the case of Imerman v Imerman (2009)
highlights the way in which Courts now approach the issue of
information held electronically. Mrs Imerman's brothers shared an
office with Mr Imerman. Once the divorce proceedings had commenced
the two brothers downloaded bank statements, emails and credit card
statements belonging to Mr Imerman and searched the hard drive for
information about his assets. Much of this information was
password-protected and the Judge decided that "by virtue of this
fact alone" the information could be classified as
confidential.
The Court concluded that Mr Imerman's Article 8 rights had been
infringed and that generally it would be unfair to permit a party
to breach the ordinary procedural rules. Although the Judge ordered
that the brothers should be prohibited from sharing any of the
information they obtained, he stated that in some circumstances the
Court did have discretion to make use of such information. The
brothers have now been granted leave to appeal to the Court of
Appeal, which will decide whether or not the information obtained
can in fact be used in the matrimonial proceedings.
There is still considerable uncertainty about whether
confidential information held electronically and intercepted by the
other spouse is admissible. The Courts have so far been unable to
reconcile the conflicting principles of privacy and disclosure.
Therefore spouses should be wary of copying or printing electronic
information that does not belong to them because of the possible
civil and criminal consequences and instead rely on the duty of
disclosure, requesting the Court's assistance if there is a real
concern about concealment.
For further information please contact
Simon
Burge, a partner in Blake Lapthorn's
Family team on 023 8090 7088 or
at simon.burge@bllaw.co.uk.
