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Honesty in divorce...a contradiction in terms?

View profile for Graeme Barclay
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No matter the reason for a divorce, all couples will be feeling hurt, confused and possibly betrayed by the loss of trust in their relationship. During proceedings there may be the temptation to find out if a spouse is seeing a new partner, maybe looking for evidence of adultery taking place, or to see if they are hiding assets during financial proceedings. Graeme Barclay, Family Partner, here answers the question…are you ever entitled to hack their emails or sneak a peek at their post to find this out?

This type of behaviour was recently re-examined in the case of Arbili v Arbili. In this case the husband sought to have a financial order dismissed after he suspected that his wife had not been honest about her financial situation. The husband claimed to have found evidence of this having hired a private investigator in France to see if she had hidden assets.

Mr Arbili sought to rely on the results from private investigator but refused to properly tell the Judge how this information had been obtained. The Judge therefore declined to take the information into account. “The case confirmed the stand previously taken in the case of Imerman v Tchenquiz and others that should you obtain information about your spouse, you cannot hold on to the documents and produce them as a smoking gun,” begins Graeme. “You have to send them to the other side for them to produce, but you can tell the court what you have seen. If you are in court proceedings, such evidence may be permitted but it could also be excluded it. Decisions like this will be up to the Judge.

“Most methods of taking matters into your own hands if you are suspicious, such as opening their post or hacking into email accounts, will be seen by the court as illegal. They will harm your credibility enormously and there is certainly no guarantee they will help you in your case. As in this case the Judge is fully entitled not to look at the documents especially if you cannot explain how you came to have them.”

Within the financial relief process there is a suite of information that is required if either party wishes to resolve the division of assets. Graeme explains, “As standard, both parties will be required to provide 12 months’ worth of bank statements for each bank account they have, a comprehensive list of investments, pension statements, property valuations and anything that may relate to their income such as pay slips, P60’s etc. If a spouse is aware that some assets have not been disclosed then the other party can be asked to do so via a formal request. You will have your reasons for why you think your spouse has not disclosed everything and if you can convince the Court of your reasons then ultimately they can make a financial order based on how much money they believe the other person has, not purely based on what they have disclosed.”

There are also other ways to find out information other than hiring a private investigator. While opening someone else’s post without their permission is against the law, viewing their social media accounts is not. “The world of social media has opened up a whole new perspective on learning about someone. We would never advocate a spouse log into another persons account themselves or steal passwords but the information a person chooses to make public by posting photos or a status is not viewed as confidential.”

Graeme explains, “The use of a private investigator can be seen as an extreme measure, but if necessary, should be limited to only observing the other party in their day to day activities, their lifestyle, living and working arrangements, and using this information to piece together anything they may have been neglected to disclose.

“This in itself is a tricky area and financial orders can be difficult to enforce where there is no evidence of the assets owned, therefore we would always recommend you speak with your lawyer about the different steps you can take if you believe your partner is not being totally honest during your divorce,” concludes Graeme. “Not only can we advise on what can be considered illegal in the eyes of the court, but we can also guide you on what the best path will be in conveying your suspicions to get the outcome that is in the best interests of all concerned.”

If you’re considering a divorce and looking for advice on the process or making a financial order, you can contact the Family team on 02380 717431 or visit their section of the website here.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.