A carrier bag full of paper

30th January 2013

I often get asked by my divorce clients if they should be looking for paperwork belonging to their spouse to prove what assets or income they have as part of their divorce case. On occasions I have been handed carrier bags or envelopes of miscellaneous letters and documents belonging to their spouse. My clients are always surprised when I tell them that confidentiality exists between a husband and wife whether prior to or after a breakdown in their relationship and whether divorce or other legal proceedings have been issued or not.  On this basis, they should not root around for their spouses financial documentation and that bag of documents belonging to the spouse should be returned immediately without taking copies.

In the legal world, clients had previously been allowed to rely on “self help” provided they only retained photocopies and that the originals were returned to their spouse. This is no longer the case and the issue of ‘self-help’ is not particularly straightforward.  The following information is a guide to help you avoid the common pitfalls. 

Firstly and most importantly remember married couples are not exempt from the rule that each party to the marriage has the right to privacy.  There is no authority for a spouse, in circumstances that would otherwise be unlawful, to take, copy and retain copies of confidential documents even if there is a suspicion that the other spouse is seeking or will seek to obscure assets from view.

If the other party would not give you consent to acess or copy the document, it is likely that the document is confidential and accessing could lead to an actionable breach of confidence, action in trespass to goods, or criminal prosecution under the Data Protection Act 1998 and the Computer Misuse Act 1990. The court may also decide that the documents cannot be admitted as evidence in the financial proceedings and conduct may also be penalised in costs.

A confidential document includes all documents connected with family or private life, personal and family assets or business dealings. This will include bank statements, correspondence relating to business or personal finances and also personal documentation such as diaries.  It will not apply to documents regarding joint assets. You are able to access documents relating to joint assets – for example bank statements or a joint mortgage.

The location of the documentation will also have a bearing on its confidentiality. However confidentiality is not dependent upon locks and keys or their electronic equivalent and therefore it does not automatically mean that, because a document is not contained within a locked filing cabinet or a password-protected computer, the document can be assessed and copied.

Confidentiality in a document cannot be lost because it has been left lying around the house and is discovered unintentionally by the other party. The confidentiality rests in whether the spouse would consent to that document being accessed, rather than how or where it is discovered.

  1. You should protect your own information by ensuring all passwords are secure and all confidential information is stored in a safe and secure place.
  2. You should not break into a locked filing cabinet or equivalent or ask anyone else to do so on their behalf.
  3. If documents are in open files or in communal office areas, you should not look for, or copy, documents belonging to your spouse unless it is known that he/she would consent to those documents being viewed/copied.
  4. If information has been left out openly (ie not locked in a drawer or study) but it is known that the spouse would not consent to the information being copied it should not be taken or copied. You can make a mental note of what the documents say or contain, or take a written note of the key points. However, if copies are taken then these should not be passed onto me.
  5. Any information that is sent to me has to be disclosed to the other spouse and his/her solicitor.
  6. Original documents should not in any circumstances be taken without agreement.
  7. Confidential information on a computer includes information that is contained on a home or business computer, information contained on an external hard drive, memory stick or cd/disk, and information contained within, eg, a Facebook account, but confidentiality would not apply to information that is posted on a public “wall”.
  8. If the information is password protected and the password is unknown to you then you must not obtain access to this information or ask anyone else to do so.
  9. If the information is unprotected or available with a password which is known (or it was a joint password) then access to this information can be obtained if it is known that the spouse would agree.

A final note is to BE CAREFUL.  There are serious implications (possibly criminal) for you and your solicitor if the rules are broken. Before you do anything, please ask for advice