What should you do if your marriage is on the rocks and you are certain that if there is a divorce your spouse will hide away his or her assets to frustrate your claim? Are you entitled to take and copy documents belonging to your spouse to use as evidence? Can you intercept their post? What about taking the hard drive from their 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. Taking or intercepting a document which is the property of another is trespass and can lead to a claim in 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. However although such actions may be permissible and the documents copied be admissible in evidence this will not constitute a defence should a claim for loss suffered be brought.
The current position was summarised by Ward LJ in the case of White as being:
“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 nor…the removal of any hard disk recording documents electronically. The evidence contained in the documents, even those wrongfully taken, will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs.”
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. Any documents which are not relevant to the proceedings must not be taken. This could include confidential correspondence with no bearing to financial matters.
The conclusion can only be 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.