You should not take copies of your spouse’s confidential documents following separation. What is ‘confidential’, however, is sometimes not clear.
Historic self-help remedy – why parties may want to take copies of confidential documents.
In the past, when one party feared that the other will not cooperate with disclosure or suspects that they will attempt to hide or move assets, parties had a ‘self-help’ remedy.
The family court would not penalise the often financially weaker party for searching their spouse’s personal and private documents to uncover the true position. This was on the basis the documents they wanted to rely on were copied and immediately returned to their spouse or their solicitor.
The information contained in the documents, even those wrongfully taken, could be admitted in evidence because of the overarching duty on the parties to give full and frank disclosure. All that changed when the Court of Appeal handed down its landmark judgment in Imerman v Tchenguiz  EWHC Civ 908 (Imerman case).
What is the position today on taking copies of confidential documents following separation?
It is a breach of confidence to examine without the owner’s consent, make, retain or supply copies to a third party of confidential material belonging to another person.
Anybody doing so risks both criminal and civil sanctions and the court may restrict the use of such information as evidence. Parties also have a right to a personal and individual private life under the Human Rights Act 1998
Therefore, you should not take copies of your spouse’s confidential documents following separation.
What is a private or confidential document?
There is no clear guidance on when a document is confidential. Confidentiality is not defined and is therefore a matter of fact and circumstance in each case. Communications and documents about a person’s private life, including personal finances and business dealings will be considered confidential. This will include bank statements, correspondence relating to business or personal finances, and personal documentation such as diaries.
Confidentiality does not apply to documents regarding joint assets. You are therefore able to access and look for documents relating to joint assets; for example, statements of joint accounts or a joint mortgage. You have the right to locate these documents and forward copies to your solicitor.
In the Imerman case the court took the view that confidentiality can be waived if confidential documents are left available to be seen by others, for example, if left lying around the matrimonial home. However, if you know that your spouse would not consent to a document being read, then it is safest to assume that it is confidential and to seek advice.
Confidentiality is not dependent upon locks and keys or the 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 accessed and copied.
The key question when assessing whether or not a document could and should be accessed is: ‘would your spouse consent to these documents being accessed and copied?’. If the answer is no, it is likely that the document is confidential.
Self-help becomes self-harm
Parties no longer have a ‘self-help’ remedy and instead could be harming their case if they do not follow the correct procedures. Not only could you be prevented from relying on the information, you may also create a professional conflict with your legal adviser preventing them from continuing to act for you and you may even be committing a crime.
If you suspect your spouse will not comply with the duty to provide clear financial disclosure it is essential to take professional advice before trying to access or take copies of copy confidential documents.
How Can Watson Morris Help
The team at Watson Morris Family Law can help you navigate the law on taking copies of confidential documents following separation. For an initial no obligation consultation please contact us.
Written by Faye Wright
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