The recent decision of the court of appeal in the case of Arbili v Arbili has highlighted once again the difficulties encountered by a divorcing party who attempts to obtain documents from a reticent spouse.
It can often be tempting for one spouse, suspicious that the other has not been upfront as to the true extent of his or her assets, to seek to uncover the truth through underhand, and even illegal, means. Examples of such behaviour highlighted in case law include hacking into email accounts, raiding filing cabinets, opening letters addressed to the other party and copying documents left in unlocked offices. Often the aggrieved spouse does these things personally; however, sometimes an enquiry agent will be employed.
In the case of Arbili v Arbili the husband attempted to set aside a financial order on divorce by relying upon information that his private investigator had illegally obtained from the wife’s computer account. He claimed that the documents demonstrated that the wife had not made full disclosure to the court.
Having obtained the documents illegally, the husband then complied with his legal obligation and immediately returned them to his wife, without retaining any copies. Following a statement submitted by the wife dealing with the contents of those documents, the court effectively dismissed the husband’s application, ruling that he had failed to clarify what he alleged he had seen in the documents that contradicted his wife’s statement. The court was critical of the manner in which the documents had been obtained, the intrusion into his wife’s private life and the resulting delay and additional costs. All of the husband’s investigations had come to nothing.
This is a common problem faced by many going through a divorce, mistrustful of their spouse and suspicious that assets will be hidden and squirrelled away. However, the modern view is that courts cannot be seen to encourage either party to obtain documents by illegal means. It is easy to be critical of the law in its attempt to balance the competing interests of two aggrieved spouses; one hampered by the other’s lack of frank disclosure, and the other seeking to rely on civil and criminal law to uphold his or her right to privacy.
Over time, the divorce courts in England and Wales have firmly followed the criminal and civil law, with the result that the enquiring spouse is likely to get into hot water, to no avail. Breaching privacy laws, whether by personal sleuthing or by use of an enquiry agent, merely brings down the might of the court against the sleuth rather than their possibly non-disclosing spouse. It is simply unlawful for a spouse to copy documents belonging to the other – whether hard copies or electronic – without permission. The fact that the parties are married does not justify behaviour that would otherwise be unlawful. If a spouse illegally obtains confidential information, the injured spouse is entitled to relief such as an injunction or an order that the documents be returned and all copies destroyed. Penalties include civil and criminal sanctions, theft or burglary charges, costs orders and charges under the Computer Misuse Act or the Data Protection Act. The resultant damage to that party’s credibility may be significant within the divorce proceedings, resulting in orders to pay the other’s costs, which can be crippling.