It’s not unusual in relationships that are breaking down for one party to suspect the other of wrongdoing.
That may relate to the suspicion of adultery, concealment of financial assets or more general concerns about behaviour affecting the marriage.
It may be tempting for a spouse to search for evidence to support their feelings that all is not right. Living under the same roof it may be all too easy to access private documents belonging to your spouse to gain certainty.
The fact you are married does not entitle you to do this and the possibility the documents are easily accessible is not an excuse.
A recent case in Switzerland serves as warning of the potential ramifications of accessing a spouse’s private emails, or any other private documents.
In this case the wife, who was not named, logged on to her husband’s new, second email account. She used a password she already knew as the couple share
d passwords, or noted them down next to their computer.
The wife discovered the partner had been having various extramarital affairs. She subsequently confronted him about this, and the couple separated.
The matter came to the attention of the authorities and the wife was charged with unauthorised intrusion into her husband’s data. She was convicted and given a hefty fine.
On appeal the conviction was upheld, although the fine was reduced because she only had to “exploit her husband’s carelessness” and thus exert “minimal criminal energy” to gain access to the emails.
The case serves as a sage reminder to husbands and wives in England & Wales that they too are not entitled to freely access their spouse’s private documents, including emails. The issue was dealt with in 2010 by the Court of Appeal in London in the Imerman case. In this instance the more common situation of one spouse believing the other is hiding financial assets from the court was the issue.
Here, the wife feared her husband would conceal his assets in divorce proceedings, and therefore obtained financial documents belonging to him from a computer in an office he shared with her brothers.
The Court of Appeal held she had to return the documents and not retain copies. She was also not allowed to use any information she had gained from them within the divorce proceedings.
In this case the wife did not suffer any criminal penalty for her actions. However, in his judgment, Lord Neuberger, said: “the surreptitious removal of papers may, depending of course upon the circumstances, involve offences such as theft or burglary”.
He went on: “But where, as in this case, information is surreptitiously downloaded from a computer, there may also be criminal offences under the Computer Misuse Act 1990 and the Data Protection Act 1998.”
In other words, a spouse in this country could face a similar fate to the wife in Switzerland.
Further to this, said Lord Neuberger, the spouse whose documents had been taken could sue the ‘guilty’ spouse for breach of confidence. This could result in the ‘guilty’ spouse being ordered to pay damages.
If you fear a spouse is going to conceal assets, the law offers some protection.
In any financial remedy proceedings both parties are under a duty to make full disclosure of their means to the court and the other party. If you believe that your spouse has not done so, then you should take up the matter with the court through your legal representative.
The court can order specific disclosure, and can even assume they own undisclosed assets, if it believes the truth has not been told.
So, as we approach what the media has in recent years termed ‘Divorce Day’, remember the simple rule is, don’t be tempted to access private emails or documents belonging to your spouse whatever your suspicions. Instead, rather than risk later action against you, seek legal advice.
For professional legal advice contact one of our solicitors on 0161 838 5410.
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