Family Law | Disclosure of Confidential Information In Financial Remedy Proceeding

Family Law | Disclosure of Confidential Information In Financial Remedy Proceeding

I am sure we have all heard of scenarios where one party has hacked into another’s laptop or taken mail which does not belong to them thinking that they will find an undisclosed bank account or asset. Did you know that by doing so you could be in breach of criminal law or the rules of confidence and/or both?

In financial proceedings, the parties are under a duty to give full and frank disclosure at all times. The Court can draw adverse inferences where one party has failed to give full and frank disclosure.

So what will happen if you do take someone else’s mail?

It is not necessarily a crime to open another’s post but it is an offence to delay or open a postal packet during its transmission by post.

So what does ‘transmission by post’ actually mean?

Well, it is defined as from the time of delivery to a post office or letter box to the time of delivery to the addressee. Delivery to the addressee occurs when the letter/packet is delivered to the address to which is addressed/redirected or delivered to the letter or post box. So once the letter/packet has been delivered, it is no longer in transmission. However, opening the same may be a breach of confidence.

Under section 1 of the Computer Misuse Act 1990, it is an offence for a person to access a program or data held in a computer, where that access is unauthorised and he knows that to be the case at the time. In relation to informant on a computer, issues may arise as to whether access is via a shared device, and how it takes place. Where a password is entered to access an account, or the automatic sign in on the device is used, it is likely that there will be a breach of duty of confidence.

Under section 170 of the Data Protection Act 2017 it is an offence to obtain or disclose personal data or procure the disclosure of personal data to another person without the consent of the data controller, or after obtaining personal data, to retain it without the consent of the person who was the controller in relation to the personal data when it was obtained.

However, a party can ask questions about documents he or she has seen, replying on their memory of what they saw. The Court can order a party to make specific disclosure and can also order a third party such as a bank to provide information/statements of accounts. If you believe that documents/property exist you can also apply to the court for an order for the search of premises and seizure of relevant property. However, this can be risky and expensive.

Our advice – please do not access any documents belonging to your spouse or civil partner.

The information provided in this article is not intended to constitute professional advice and you should take full and comprehensive legal, accountancy or financial advice as appropriate on your individual circumstances by a fully qualified Solicitor, Accountant or Financial Advisor/Mortgage Broker before you embark on any course of action.

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