What does “self-help” mean in divorce proceedings and is it a good idea?

For those forced to call into question much of what they thought was implicit within their relationship, trusting their former spouse to be candid about their financial position is a big ask for divorcing couples. In the context of a relationship breakdown, seeking to obtain the financial information you need from them yourself may seem like a faster and more reliable option.

One party to a divorce accessing the other party’s financial information and using it in litigation is referred to as ‘self-help’. It is not necessarily a disregard for the rules but desperation that drives people down this route, unaware that what they are doing is likely to be unlawful.

The law

The Court of Appeal has confirmed that the fundamental right to privacy and confidentiality exists even between husband and wife. It is unlawful to take, copy and keep copies of confidential documents even if you think your spouse or partner may be trying to hide assets.

Find out more on the law.

Accessing a confidential document belonging to your spouse or partner could lead to civil action or criminal prosecution under the Data Protection Act 1998 and/or the Computer Misuse Act 1990.
It is also not guaranteed that the court will allow such documents to be part of the evidence in your financial proceedings, and you could be penalised with costs orders for the way you obtained them.

What is a confidential document?

If you consider that your spouse is unlikely to consent to a particular document being accessed and copied by you, then it is likely that that document is confidential and you should not access it.

Don’t

• take or copy documents locked away in a cabinet or drawer (or if in electronic format are password protected)
• take or copy documents in open files or in open office areas (or in electronic format that are not password protected), without your spouse’s consent
• take or copy documents which have been left lying about the house/office and not locked away, without your spouse’s consent
• hack into any information held on any electronic devices, including a home or business computer/laptop, an external hard drive, memory stick or CD/disk, handheld devices including mobile phones, tablets and any private email or private social network, belonging to your spouse
• install listening devices on your spouse’s telephone/mobile phone
• open any post addressed to your spouse
• send original or copy documents to your solicitor
• ask anyone to do any of the above on your behalf.

Do

• make a mental or written note of the content of documents left lying around the home/shared office space and tell your solicitor what the documents say or contain
• keep any written notes you make as evidence
• return any original documents taken inadvertently without consent to your spouse or partner
• protect yourself:
  
  • download/remove all your content from any shared folders on the home/shared computer
  • use your own laptop or use one at work, public library etc, rather than the home computer
  • create new passwords/update passwords routinely on all your electronic devices. Take care not to store or ‘remember this password’ on your devices
  • delete your browsing history and/or temporary internet files from all your electronic devices regularly
  • increase your security/privacy settings on social media
  • remove questionable content from any public ‘wall’ and do not put down anything in writing that could be used against you or benefit your spouse or partner
  • seek early specialist legal advice to maximise your chances of obtaining full financial disclosure in a timely matter.