Full disclosure: how to maintain privacy and confidentiality during divorce

A common pitfall for someone going through a divorce is to go through your spouse’s documents and possessions in the hope of unearthing information which hasn’t been disclosed because you think it might assist your case.

The recent high-profile case of Karen and Lawrence Santi, reported earlier this year, is a good reminder of the dangers and potential high penalties of attempting to find out for yourself what your spouse’s personal documents might reveal.

During the couple’s divorce, Mrs Santi unlawfully accessed and read confidential information, including bank statements, belonging to her ex-husband in an attempt to find proof that he was having an affair, which she should not have done.

In December 2020, Mr Santi applied for an urgent interim injunction in the High Court against his ex-wife in light of her actions. The court found in favour of Mr Santi, holding that Mrs Santi’s actions constituted a breach of her ex-husband’s confidentiality, the misuse of personal information and obtaining information improperly.

The judge ordered Mrs Santi to pay £54,000 in legal costs to Mr Santi, a 60% share of the overall costs. After that, the couple both returned to the substantive financial negotiations, although with substantially less in the pot.

Family lawyers understand that, during the breakdown of a marriage, emotions can often run high. Navigating the right route to the conclusion of your divorce and financial settlement can be immensely challenging. If, on top of this, you believe that your spouse may be concealing information, it may be tempting to take matters into your own hands to try to strengthen your case. However, the expensive outcome of the Santi case should sound a helpful warning note.

In financial remedy proceedings, the law requires each spouse to provide full and frank financial disclosure to the other and to the court during the financial negotiations and court proceedings.

Practically speaking, each person completes a financial statement, known as a Form E, to disclose full details of their financial circumstances including property, bank accounts, shares and investments, possessions over £500, debts, company assets, pensions, income, capital and income needs, relationships and any other circumstances that they consider necessary for the court to take into consideration.

Each has an obligation to provide their own disclosure – anyone who tries to introduce material belonging to the other person is likely to cause detriment to their own case and potentially risks criminal and civil sanctions being imposed upon them under the Theft Act 1968, Data Protection Act 1998, Computer Misuse Act 1990 and/or Criminal Damage Act 1971.

Established case law makes it clear that the removal and retention by one spouse of confidential material belonging to the other is unlawful. In a marriage or civil partnership, both are entitled to confidentiality and privacy. It is a breach of that confidentiality and privacy to examine without the owner’s consent, make, retain, or supply copies of confidential material belonging to another person.

Confidential information, for these purposes, includes privileged documents – those which pass between a person and their lawyer, and confidential information – documents concerning someone’s personal matters that others are not entitled to see, such as financial papers, personal letters, and diaries.

However, confidentiality will not apply to any documents which are left open and available to be seen by others, for example, on a table or in a communal living area.

With this in mind, it is important to be aware that obtaining your spouse’s confidential information or documents without consent in the following ways would be unlawful:

• Removing their original documents
• Opening their post
• Accessing premises where their information or documents are stored
• Breaking into a locked cupboard, cabinet, briefcase or file in which their information or documents are kept securely
• Making copies of their information or documents
• Downloading information or documents from their computer or mobile phone
• Emailing or posting copies of their information or documents to yourself or a third party

Any confidential information or documents obtained in such ways cannot be used as part of the financial negotiations or court proceedings. Not only can they not be read by your own lawyer and should be returned straight away, but your lawyer may have to stop acting for you if that is required to comply with their own professional rules.

If you become aware that confidential information or documents belonging to your spouse have come into your possession inadvertently, these must be returned to your spouse or their lawyer with a clear account of how they came into your possession.

For those concerned that their spouse is potentially hiding assets or refusing to disclose their financial information in full, there are legitimate and helpful methods of checking elements of their disclosure and obtaining further information where necessary, such as:

• Requesting further information using a questionnaire, following the exchange of Forms E. This can include requesting information or documents which are missing or seeking clarification where the information is unclear or contradictory in the Form E
• Searching via Companies House for information relating to a limited company
• Searching via the Land Registry for information relating to a property
• Searching via the Pension Tracing Service for information relating to a pension
• If you are a company director or shareholder, by attending the company’s board meetings or AGM
• If you hold bank accounts, investments, or other assets jointly, by requesting information from the administrator
• If you are a beneficiary of a trust, by requesting copies of the trust accounts from the trustee
• Engaging a private investigations company to obtain open-source information

On the other hand, if your spouse has accessed and read confidential information and documents belonging to you, you may wish to consider applying for an injunction to prevent them committing any further breaches and using your information for improper purposes. This is likely to be expensive, but it may be suitable if the circumstances are serious enough to warrant it.