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If you’re going through a divorce, it may be tempting to go through your spouse’s office, documents or personal effects to search for evidence that will support a claim in a financial settlement.
In the past, such evidence relied on the ‘Hildebrand rule’ after the case of Hildebrand v Hildebrand which determined it was primarily acceptable to search for and copy documents belonging to a spouse during a divorce. Your evidence could be relied upon in proceedings providing that you hadn’t criminally damaged property (for example, by breaking open a lock) to gain access to it.
However, the Imerman case changed the way the courts deal with this type of situation. After Imerman, neither party going through a divorce can access, remove or copy private information belonging to the other party.
In this scenario, private means ‘does the person who owns the information have a reasonable expectation of privacy?’ Just because you are married does not mean you lose the right to privacy. If a spouse has made an effort to keep documents discrete, they have a right to privacy.
This means you can’t open sealed envelopes containing bank statements, rifle through private files of documents or search for documents in a person’s private study or office.
Indeed, a person can be prosecuted for wrongfully accessing another person’s private documents.
What are ‘confidential documents’ and how do I know they are confidential?
Typically, confidential documents are those items that are personal to your spouse and not openly accessible to you.
Note that the document does not need to be in a locked cabinet to be classed as ‘confidential’. Data stored electronically can also be classified as confidential. Even if you have access to your spouse’s computer or email account, they retain the right to privacy and you should not read or print these documents.
In contrast, documents given to you during your relationship, or documents that have typically been available to you during your relationship, may not be classified as ‘confidential’. For example, if bank statements are left open on the kitchen table, the account holder may not have ‘a reasonable expectation of privacy’.
What if I copy or take confidential documents?
If you take or copy documents classified as ‘confidential’ you may be committing a criminal offence under the Data Protection Act 1998 and the Computer Misuse Act 1990.
In the landmark Imerman case, the court ordered that the documents that the wife had obtained should be returned to the husband’s solicitors without any copies being taken. None of the information from the documents was admissible in the case.
What if I know there are confidential documents my ex has not disclosed?
If you are aware of the existence of documents that have not been disclosed you can use your knowledge of these as evidence.
You should tell your solicitor if you believe that there are documents which show that the other party is failing to disclose all the necessary information. Your solicitor can then pursue full disclosure from your spouse as they are obligated to do so.
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The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.