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.
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