Copying Evidence In Divorce Proceedings

What should you do if your marriage is in trouble and it looks like there is going to be a divorce

. If so it is likely that your spouse will play dirty and hide away his (or her) assets to frustrate your claim? You are going to need evidence of these assets so are you entitled to take and copy proof that he has in his possession? Can you intercept his post? What about copying the hard drive from his computer?

Any of these actions could be classified as a wrongful interference with the property of another or even theft. Even more they could lead to allegations of breach of confidentiality and misuse of private information. It is a civil trespass to take or intercept property belonging to another and this can lead to a claim for damages.

The question is whether the risk of assets not being disclosed in matrimonial proceedings is a defence to what might otherwise be an illegal act.

The leading case is Hilderbrand. This holds that where a spouse involved in matrimonial proceedings anticipates disclosure problems they can take and copy original documents but must not use force, must not intercept documents and may not remove computer hard drives. Should a claim be brought for loss suffered by the removal of documents this will not form the basis of a defence even though the documents were acceptable in evidence in the matrimonial proceedings.

In the case of White the position was summarised by Ward LJ in this way:

The Family Courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents or the interception of documents or the retention of documents northe removal of any hard disk recording documents electronically. Even though documents may have been wrongly taken they will still be admitted in evidence by reason of the absolute obligation of both parties to give full and frank disclosure. The consequences of wrongly taking documents could be the making of an order for costs against you.

The recourse to self-help without judicial sanction should therefore be exercised with extreme caution. The right to privacy even between spouses remains and will only be overridden by the need for family proceedings to be conducted after full disclosure of all material facts.

Self-help is a risk and should be exercised with caution. If documents are taken they must be replaced as soon as possible. You should never take any documents which are not strictly relevant to issues in the proceedings. This could include confidential correspondence with no bearing to financial matters.

You must be aware at that to resort to self-help is to take a risk. It is arguable that there are times when unorthodox steps have to be taken to enable the court to have regard to all the circumstances of the case with reference to all the available evidence. Once obtained there is little doubt that the court will admit the evidence and take notice of it. However if you decide to take this risk you have to accept the danger of a claim being brought against you in tort outside of the family proceedings.

Andrew John

by: Andrew John

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