When your relationship breaks down and you’re keen to get a fair financial agreement, is it ethical or even legal to see what you can turn up in your partner’s private paperwork?
While some relationships keep all finances transparent, often neither partner knows all the ins and outs of each other’s financial situation. If you’re suspicious that they have money squirrelled away or a secret bank account, you may be tempted to do your own ‘investigative research’.
The fact is that this type of self-help is not acceptable in law.
This became clear after one particular case, Tchenguiz v Imerman, in which the Court of Appeal deemed that this type of self-help is actually a breach of confidence, and parties who are married are entitled to just as much confidentiality from each other as they would any other person.
However, there’s a grey area about what is and isn’t a confidential document.
For example, you may spot a document belonging to your partner left out somewhere in your home. If it’s been left somewhere where anyone could see it, then this realistically isn’t being treated as confidential by the owner.
But if the document is kept in a locked drawer or can only be viewed on a computer that is password protected, it is clearly being kept private. Should your family lawyer use a document they might end up involved in legal proceedings and unable to represent you.
And if you have given them the document, you could be at risk of committing a criminal offence, a breach of confidence and trespass to goods.
This applies not just to documents but also other unlawfully obtained information, from emails to text messages, videos and photos. If you do give such information to your lawyer, they, by law, must return them to your partner’s lawyer, which will end up costing your more in lawyer’s fees.
The safest route is never to use documents and other information that your partner hasn’t agreed access to by giving the originals or copies to your lawyer. You can sometimes use your knowledge of certain documents to challenge your spouse’s disclosure; for example if a document you’ve seen shows that your former partner is not being truthful about their assets. However even then you could end up in legal hot water, if your former partner claims you’ve seen these documents illegally – so discuss this with your lawyer first.
If you feel that your partner is withholding financial information, you will need to issue a Court application to resolve financial matters. This could mean seeking further orders from the Court to secure document production, seizure and asset freezing orders.
Remember that the duty of full and frank disclosure is ongoing at the outset of your case. It is fundamental in seeking clarity and identifying issues. Whether undertaken voluntarily or pursuant to a court order you and your former partner must ensure you abide by this duty when completing your Form E as non-disclosure may result in adverse inferences being drawn or worse, penalties.
What about social media as evidence?
There’s a different attitude taken by Courts to social media evidence. After all, this is in the public domain (unless a ‘private’ Instagram account or private messages on a social media platform). So long as the evidence is relevant then it could potentially be submitted.
For example, if a former partner is taking luxury holidays that previously he or she would have not been able to afford, or they are buying luxury goods then this could be seen as evidence that they have more money than they have disclosed. Where one partner is seeking maintenance, evidence that their former partner is in a new relationship may be used in support of their claim.
When in doubt…
Consult your lawyer. They have the expertise to advise you about what is and isn’t confidential, and how you should proceed if you believe your former partner has not provided full financial disclosure.
Need some advice? Get in touch today