Financial remedies: don’t help yourself to your spouse’s documents

Financial remedies: don’t help yourself to your spouse’s documents

Lauren Preedy - Senior Associate Solicitor - Head of Divorce and Relationships Team

Lauren Preedy – Senior Associate Solicitor – Head of Divorce and Relationships Team

It is often the case that when someone is getting divorced, or when their marriage is breaking down, they still have access to their spouse’s private financial documents, whether physical documents, or documents held on a computer.

Naturally, there can be a strong temptation to read and copy those documents, particularly when it is feared that the spouse may be intending to hide, or not disclose, details relating to their finances.

That temptation must be resisted, as a recent case demonstrates.

Private correspondence

The case concerned a husband who was a successful businessman, and a wife who did not work.

In the case it was the wife who got into hot water over accessing documents on the husband’s computer, as she subsequently admitted. The reports of the case do not contain many details relating to exactly what happened, but we do have some information.

The husband and wife separated in late 2019, when the wife left the matrimonial home. However, we are told that the parties had previously separated twice, in the spring of 2018, for two months, and in the winter of 2018/2019, for nearly four months.

Clearly, the wife would have been aware that the marriage may fail, long before it finally did. There would have been ample opportunity during this time for the wife to access a computer in the matrimonial home belonging to the husband. Or perhaps the wife may during this time have had access to the husband’s place of work, and therefore access to his computer at work.Financial remedies

We are also not told what documents the wife accessed on the husband’s computer, only that it comprised “his private correspondence, including privileged material.” Privileged material is material that, because of its nature, is protected from disclosure in court proceedings. Communications between a lawyer and their client, for example, are usually privileged.

Lastly, we are not told what the wife did with the documents, only that she read and copied them, by taking photographs, presumably of the computer screen.

But what matters is that if the owner of the documents becomes aware that the other party has accessed them, then they can ask the court to exclude the documents from the proceedings. There is then likely to be some legal argument over whether or not the documents, or their contents, are allowed in evidence (in addition to any possible arguments over the circumstances in which the documents were accessed). Those arguments will inevitably increase the legal costs.

And that is where the wife felt the consequences of her actions.

 

Litigation conductBronze Statue of the Angel of Justice beneath the gilded figure of Victory on the Queen Victoria Memorial, London, UK

If the court finds that a party is guilty of bad conduct in the course of the proceedings (known as ‘litigation conduct’), it can penalise that party by ordering them to pay all or part of the other party’s legal costs.

And the judge in the case did consider that the wife’s actions amounted to misconduct, describing them as “completely unacceptable”. He therefore ordered the wife to pay all of the husband’s costs relating to the issue, amounting to £23,400.

The judge said that the wife should pay that full amount “so that the message goes out that if you behave in such a way you are going to suffer a heavy penalty in costs.”

The moral is quite clear: if your marriage is, or may be, breaking down and you have access to documents belonging to your spouse, then you should resist the temptation to look at or copy those documents. And if you are unsure about what you can and can’t do in relation to any documents, then you should seek legal advice before taking any action.

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