Part of divorce involves gathering evidence and, at some point, you will probably need to obtain evidence and supporting documentation for any claims you make. This generally happens for contested financial settlements or disputes regarding children, such as where they will live. Although you will need your marriage/civil partnership certificate in order to start a divorce or dissolution application. Besides physical documents, you can also provide evidence orally through your own testimony and witness testimonies of friends, family, neighbours and experts. Hearsay (what you have heard others say) is not acceptable as evidence.
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How can evidence be gathered?
The main issue surrounding gathering evidence is deciding whether the person who has gathered the information has an implied right to use it. For example, a spouse may have seen some emails left on their partner’s computer screen. Do they have a right to read them? Is it acceptable to read text messages when using or borrowing a spouse’s mobile? It is certainly open to interpretation.
Gathering as many facts as possible about your finances is crucial to a successful outcome in financial negotiations, but if you have gathered such evidence inappropriately, it could be worthless.
Before deciding to gather evidence before revealing an intention to divorce to your spouse, it is sensible to seek legal advice as to how that evidence can be properly gathered.
Can I access my spouse’s emails and electronic documents?
If you are thinking about instigating a divorce or in the throes of one, the temptation to search for evidence by looking at your spouse’s emails and downloading documents may be fierce. However, if you do so, then you have committed an illegal act and possibly a criminal offence.
This is not a new issue. In 2010, a Judge severely criticised a wife for relying on documents she had obtained from her husband’s computer. The Judge stated that “the removal of papers even electronically might involve offences such as theft or burglary”. Where information is downloaded from a personal computer, criminal offences under the Computer Misuse Act 1990 and the Data Protection Act 1998 may also be committed.
Additionally, you could also find yourself in breach of the civil offences of breach of confidence and invasion of privacy for which the court could order you to pay damages and costs. In the case above, the court ordered the wife’s solicitor to return all documentation and ruled she could not rely on them in court. However, a word of warning, it could have been a lot worse.
The simple rule to follow is not to access private emails, documents or communications belonging to your spouse, whatever your suspicions.
Financial evidence
Financial disclosure in divorce requires both parties to disclose to the other all their personal finances, assets and liabilities.
Financial disclosure covers:
- Current income from every source (wage slips, accounts, bank statements, etc.)
- Future expenditure based on what can be reasonably forecast
- Current assets and liabilities, such as property, credit card debts and pensions (property valuation, mortgage redemption statement, car, credit card statements, pension valuation, shares, investments)
- Provision of evidence via the production of documentation, enabling each party to verify the disclosure of the other party.
The four main ways to conduct financial disclosure involve a document called Form E. This form is used by litigants in person (those conducting their own case without or with little legal help), via solicitors and agreeing a date for exchange of the Form E, through mediators, or via mediators using mediator disclosure forms. Both parties must use the same process. If, for example, in meditation, one party elects to use Form E, then both parties must use it.
Mediator disclosure forms tend to be less onerous than a Form E to complete and are accepted by the court as disclosure. However, mediator disclosure forms cannot be used if you do not use the services of a mediator. In that case, you must use a Form E.
If you are using the Form E, you will receive a full copy together with supporting documentation of your spouse’s financial disclosure, and in turn provide your ex with yours. Either you or your solicitor can then go through the form and supporting documentation forensically and ask questions arising from any identified discrepancy or anomaly.
If you try to hide assets or do not provide full financial disclosure, then any agreement made on the back of it is open to a legal challenge at any time in the future. The court would take any non-disclosure into account when considering the matter of legal costs.
A financial settlement is designed to give both parties, where possible, a clean break. If you want to have a consent order making your financial settlement legally binding, the court requires full and open financial disclosure to have taken place. In addition, you will sign a ‘Statement of Truth’ on the D81 Statement of Information for a Consent Order where you promise the court that full and open disclosure has happened.
If it is proven in court that you did not disclose all assets, you will probably be deemed to have committed contempt of court and possibly fraud. If this is the case, the court can: order you to go through the whole process again, order a different settlement, order you to pay all the legal costs, fine you, or in some extreme cases, imprison you.
Children cases
At least three days before the first hearing in the family court, Cafcass should have prepared a Schedule 2 letter. This should be shared with both parties, unless doing so would put the children at risk. Cafcass advise and support to help the family court and families make decisions in the best interests of the children. They safeguard and promote the welfare of the children, advise the court about the application, and make provisions for the children to be independently represented (if necessary).
The Schedule 2 letter includes background checks on both parties: who the parents are, their names, addresses and dates of birth, the names of the children and their dates of birth and who they live with. It may also contain basic information from the PNC (Police National Computer) if either party is known to the police.
Your solicitor may suggest compiling a position statement; this gives the court an outline of your position before the hearing and could bring about an early resolution if the other party accepts your position. It can also be used as a plan of what you want to achieve at the hearing.
A section 7 report is a type of report that the court can order when it needs more information about a child’s welfare and what action is in their best interests. It can consider a broad range of issues including:
- Where your child should live
- Whether your child should spend time with the non-resident parent, and if so, for how long
- The wishes and feelings of the children (depending on their age and understanding)
- The home conditions and suitability of the accommodation of you and/or anyone else your children may stay with
- Whether or not the children’s physical, emotional and educational needs are being met
- Whether or not the child has suffered harm or is at risk of suffering harm
- A specific concern that has been raised
- The parenting capacity of either parent
- The effect on the child of any proposed change in arrangements or circumstances
- Whether the local authority should be asked to report under section 37 of the Children Act 1989
- Any recommendations about arrangements for the children
The court can order a section 37 report when it is concerned the child may be at risk of significant harm. The purpose of a section 37 report is for a local authority to investigate the child’s circumstances and consider whether it should:
- Apply for a care or supervision order
- Provide services or other assistance for the child or their family
- Take any other action deemed necessary regarding the child
Section 37 reports are supposed to be completed with eight weeks, unless the court decides there should be an alternative timeframe.
Police disclosure in family proceedings
There are often cases where the police have been involved and therefore hold information which may assist a Judge in a family court to form a view of events, and the relationship between the parties. Both parties should give consideration to what material is likely to be held by the police, which may be relevant to family proceedings. Every police force has its own procedure for requesting disclosure, meaning it is not always possible to get hold of the information quickly.
In children cases, Cafcass will undertake police checks as part of their initial safeguarding checks. However, because they do not provide sufficient detail, further information can be obtained via a disclosure request by court order. Police checks are not only valuable in children proceedings but also for injunctions in domestic abuse cases where one party is seeking a non-molestation order or occupation order.
Witness statements and giving evidence in a family court
A witness statement is a document setting out the evidence of the individual writing it, which the author signs to confirm its contents are true. It should contain all the evidence you wish to rely on in court to support your case and the reasons you want the court to make particular directions or orders. Witness statements must be shared with all the people involved in the case and not just the court.
Generally, you cannot provide a witness statement without first obtaining the permission of the court to file one. Although there are certain situations when you may prepare a witness statement without permission, for example, if you are making an emergency application and need to set out the evidence for your application.
During the course of proceedings, you may be required to provide more than one statement because further information is needed. The court will direct you to do this, if it is required. Additionally, you may want someone not involved in the proceedings to give evidence to the court because they witnessed something the court should know about. If this is the case, you will first need the court’s permission to include it as evidence.
Witness statements need to be set out in a specific way. In the top right-hand corner of the first page, you need to put the following:
- The party who has asked the witness to make the statement
- The initials and surname of the witness
- The number of the witness statement (is it your/their 1st, 2nd, 3rd etc?)
- The number of exhibits attached to the statement
Beneath this information, you will need to put the heading, which should bear the following information:
- The name of the court
- The case number
- The name of the Act under which your application has been made
- The names of the parties
Each page should be numbered, and the evidence set out in numbered paragraphs. An exhibit is a document that you would like the court to see as part of your evidence. Types of document you may want to disclosure include:
- School reports
- Photographs/images
- Medical reports
- Social services letters or reports
- Bank statements
- Telephone records
- Printouts of text messages
- Emails
Each document should be labelled separately, normally with your initials and a number. For example, AB01, AB02, etc. Your statement should explain what the document is, how it came to be in your possession, and why you are referring to it. They should be placed at the back of your statement and have a front page before each exhibit with the same heading as the first page of your statement and the reference number for the exhibit.
All witness statements must include a statement of truth at the end of your statement stating that you believe the facts written in the witness statement are true. It must also be dated.
Giving evidence in the family court is very similar to giving evidence in any other type of court. You will be called into the witness box and asked to swear on oath to tell ‘the truth’, etc. This is important, as it conveys the solemnity of the occasion and importance of honesty. This is traditionally done on the Bible but can also be sworn on the holy book of another faith or affirmed if the person does not practice any religion. Cross-examination will follow your evidence with lawyers or counsel for each side asking questions.
Gaining evidence improperly and its consequences
As stated above, part of the divorce process requires the gathering of evidence, but how does the court view evidence that has been ‘intercepted’ by the other party?
The courts do not look favourably on evidence it considers being stolen. The high-profile case of Tchenguiz & Ors -v- Imerman emphasises this fact. Drinks tycoon, Mr Imerman was married to Lisa Tchenguiz Imerman. In order to gather evidence for the divorce case, the wife’s brothers downloaded material from the husband’s computer to try to prove the value of his assets. The court of appeal deemed the brother’s behaviour so appalling that it set a new legal precedent to punish this type of behaviour in the future.
This means that the former ‘Hilderbrand principle’, where a spouse could obtain documents belonging to their ex by photocopying or printing them out, is no longer useable. The court ruled that a spouse (and their solicitor) who secretly obtains information or documents may have no defence against a breach of confidentiality or injunction proceedings. The court will also not admit any improperly obtained documents into evidence, which has effectively put an end to ‘self-help’.
Intercepting your ex-spouse’s confidential letters or documents or hacking into someone’s personal digital accounts is illegal, and any evidence obtained in this way cannot be included in proceedings. Although you can include any digital or physical communications or documents that you have received yourself.
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