Disclosure of Information in matrimonial cases

DISCLOSURE OF INFORMATION IN MATRIMONIAL CASES

HOW FAR CAN YOU GO?

Following the breakdown of a marriage the division of the financial assets between the parties is one of the most difficult issues to resolve.  The Court expects the parties to place their financial cards on the table face up so that there is full and frank disclosure of all assets following which there can be an assessment of how the assets should be re-distributed with the aim of achieving a fair outcome, first consideration being given to the welfare of the minor children.

What if one party does not think that the other is being open and honest about disclosure and takes the law into his/her own hands by carrying out some investigation.

Most homes have computers and often financial information and documents are stored on them.  Is it ok to go routing around in the computer to turn up hidden documents?  The answer is up to a point.

A recent case has established it is legitimate for one party to look at a family computer which is used by both parties and which is not password protected.  Any documents found on such a machine can be legitimately copied in the same way as documents can be copied that are found lying around in the home or which have found their way into the dustbin.  Such information is "fair game".

However, breaking locks or opening post is taking it too far because there is a risk that if documents discovered in this way cannot be used conduct of the person breaking the locks or opening the post will count against them and costs may be awarded.  The same would apply if one party breached a password to obtain such documents.  The balance has to be struck between the right to have a fair trial which is in favour of disclosure of documents when balanced against the right to privacy and hard though it may seem the right to privacy was held to be the more important right in a recent leading case.  That was a particularly bad case of wholesale breaking into of the husband's computer by the wife's brothers and the manner of obtaining the information and the material nature of the documentation were two of the factors taken into consideration.

However, what happens if one person goes to the computer, finds that it is turned on and prints out or otherwise copies documents?  The password has not been breached.  Is it legitimate in those circumstances to rely upon the documents copied?  The answer appears to be yes, it just falls on the legitimate side of the line. 

As more and more information is stored electronically questions will continue to arise as to the extent to which information can be accessed by persons who were not intended to have access to this information and the Court will continue to struggle with balancing the right to privacy with the right to know.

This note summarises the law but is not intended to be a complete statement of the law or to be a substitute for detailed advice on your case.  Some aspects of the Rules are complicated.  If you need further advice, please do not hesitate to contact Chris Hall, at Crosse & Crosse, Solicitors.