Divorce and Privacy

Love, Honour and Obey…but do not look at my bank statements!

The question of whether a person has the right to open their partners post if they suspect them of having an affair may, at first glance, appear to deal with issues of morality and privacy, but sometimes it becomes a question of legality.

Couples whose marriage is now coming to an end, may be surprised to learn that the principle of privacy runs as deeply as it does, with the situation further complicated by the current financial disclosure rules.

‘Full and frank disclosure’ is the process that provides for both parties in a divorce to exchange full details of their financial position in order to receive the appropriate advice on settlement. In absence of settlement negotiated between the parties’ solicitors or through the Mediation or Collaborative Law, it enables the Court to make a decision as to how the assets of the marriage should be divided.

If the parties agree; a Consent Order is drafted to give effect to the parties’ agreement which both parties have to sign together, declaring that the financial details they disclosed in the accompanying Statement of Information as to their finances is true. If the Court makes the decision, an Order is obtained based on the financial disclosure made in the proceedings.

If at a later date it is discovered the disclosure provided above was not accurate, the ramifications can be severe. The Order made by the Court might be set aside and the dishonest party could face a worse settlement on review, a costs order and contempt of court proceedings that could lead to a fine or even imprisonment.

Careful how details are obtained

The necessity for disclosure to be full and frank so that informed negotiations can take place or for the Court to make to make the right decision is counterbalanced by the equally forceful necessity for all of the details within that disclosure to have been gained in a lawful manner.

The nature of many divorce cases will often lead one party to feel the other will be tempted to hide the true picture of their finances and ignoring the legal implications, they believe they are entitled to take matters into their own hands to discover the truth.

This is where the concept of privacy comes to have a bearing and also where recent cases demonstrate the very real risk involved in pursuing such a course of action.

The risks associated with reading the personal paperwork of a spouse were underlined in a recent case, when Lawrence Santi’s soon-to-be ex-wife opened his post to discover whether he had been having an affair.

The couple separated in September 2020 and upon being informed the ‘marriage was over’, Mrs Santi began searching for confirmation that her husband was having an affair and did so by accessing personal private material which included one of Mr Santi’s Lloyds Bank statements.

As well as opening one of his bank statements, Mrs Santi read messages on Mr Santi’s computer and sent some of this information to a financial advisor. In response, Mr Santi sued Mrs Santi in the High Court seeking an injunction.

He sought a non-disclosure order covering the private information she obtained, an order that no copies be made, a demand she make a witness statement explaining what she had obtained and how, plus an ‘invasive’ forensic imaging order intended to reveal the contents of her computer and other electronic devices.

At the hearing she agreed to hand over hard copies of private documents and not to publish any information she obtained. This hearing resulted in a £90,000 legal bill for Mr Santi, and in February this year he was back in court again, demanding that Mrs Santi should pay these legal costs.

In its ruling, the Court stated that Mrs Santi had breached the confidentiality of her husband, which although understandable, was unlawful.

The Court found she should not have accessed even the relatively small amount of documents, and that Mr Santi was entitled to look beyond the Family Division to seek an injunction and redress. Finally, the judge ordered Mrs Santi to pay 60% of the £90,000 costs, amounting to £54,000.

Take note and seek advice

The law which covers the crime of opening another person’s mail is set out in the Postal Services Act 2000, which states it is an offence falling short of theft and is intended to punish those who interfere with, but do not steal the mail of another person.

It may be understandable, in the heat of a painful divorce, to ignore the unlawfulness of helping oneself to a spouse’s sealed post or accessing their computer because you know the password, suspecting they are unfairly withholding financial details, but the law states otherwise.

Not only could the person opening the post end up facing an array of criminal charges, they might also find themselves in the unenviable position of accessing valuable financial information that cannot then be relied upon because of how it was obtained.

If you are concerned that your relationship is coming to an end and your spouse may destroy or hide evidence reflecting their true financial position, it is important you obtain early legal advice from an experienced Family Law Specialist, who will explain your options.

We can help you navigate this tricky important area and discuss matters with you on the telephone, or virtually. We also have offices across Bedfordshire and Hertfordshire if a face-to-face meeting would be better for you.

To discuss any family matters, please contact Olive McCarthy a Partner and Arbitrator in the Family Law team here at Taylor Walton on 01727 845245 or email olive.mccarthy@taylorwalton.co.uk