Legal Implications of Accessing Financial Information on Computers During Divorce

wedding cake figurines split apart signifying divorce

Editor’s note: I will come out and say it: I am not in favor of divorce.  I believe that if you marry someone, you should stick with it, even during tough times.  That said, I understand that divorces happen every day.  It’s not always avoidable.  So.  I agreed to publish this article, knowing that the information could help someone.

Many of the divorce cases that have made the headlines over recent months have concerned issues over disclosure. Wives in particular have been concerned that their other halves haven’t disclosed a complete picture about their financial circumstances. If that complete picture isn’t being given how can they have any confidence that the result of their divorce is a fair one?

This has prompted renewed questions from clients about the information they can and can’t access, particularly from shared computers.

Great care has to be taken when dealing with this question. Get it wrong and you could face prosecution under the Data Protection Act or the Computer Misuse Act.

The first point to make is that any information about assets you hold jointly with your spouse – such as joint accounts, investments or mortgages – can generally be accessed without any problems.

With regard to other information though, the key question to ask yourself is: ‘would my husband/wife consent to these documents being accessed and copied?’ If the answer is no, that document is likely to be considered confidential and so accessing it could lead to an actionable criminal prosecution.

The following general principles should act as a good touchstone when considering whether information can be accessed:

  1. If the information is password protected and the password is unknown, you must not attempt to access this information or ask anyone else to do so.
  2. If the information is unprotected or available with a password that is known (or it is a joint password) then access to this information can be obtained if it is known that the spouse would agree.
  3. If computer access is freely available but it is known by you that your spouse would not consent to this information being copied then it should not be copied.

These principles would generally apply to:

  • electronic devices with memory storage, including a home or business computer, an external hard drive, memory stick or CD/disk
  • information held on handheld devices
  • private email
  • private social network, but not a public ‘wall’

Before accessing information of this nature, it is often crucial to first take legal advice about whether information you should be going near it at all. Getting it wrong can have significant consequences in terms of the admissibility of the information, and crucially, whether criminal proceedings could follow.

Andrew Barton is a partner in the Stephens Scown Family team and a Resolution Accredited Specialist in complex financial issues arising from divorce. Stephens Scown has offices in Exeter, Truro and St Austell. Its top-rated family team advises clients on a wide range of family law issues including divorce and family finance. Andrew advises clients on divorce related issues and also pre and post-nuptial agreements.

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