THE BLOG

When Is Truth Irrelevant in Divorce

16/09/2014 11:22 BST | Updated 15/11/2014 10:59 GMT

The Amsterdam security firm Avast found recently that 1 in 5 men and 1 in 4 women in relationships check their partner's texts, apps, and photographs on their partner's mobile phone, tablets or computers. Their findings show that a quarter of those who looked, did so because they were nosey. However, 12% of those questioned admitted that they did it because they were trying to catch their partners lying to them or cheating.

Their findings were alarming in that 71% of women, and 50% of men, who snooped found evidence of lying or cheating. Their other findings were that most did not need a passcode to access the phone; 40% said that their partners did not have a passcode and 33% of women did not have them. However, most already knew their partners passcode as they had shared it with them previously.

A spokesperson for Avast said "one may think that people who snoop are being paranoid. Unfortunately for the majority of them their gut feeling is often correct".

What is so fascinating about this is that such actions on behalf of men and women in England and Wales amount to a criminal offence. Opening your partner's post for example, which is very common, is a breach of the Postal Services Act 2000 where a term of imprisonment can be imposed and a fine. Breaking into your partner's computer and downloading their emails is an offence of the Regulation of Investigatory Powers Act 2000 and Computer Misuse Act 1990. Listening to your partner's telephone calls or telephone messages without consent is a further offence under the Regulation of Investigatory Powers Act 2000 and can lead to a two year term of imprisonment and a fine.

In the light of the Leveson hacking inquiry, the issue of safeguarding the individual's privacy has been found to be paramount. Whilst there have been few prosecutions arising from "relationship hacking" in divorce or relationship breakdown, this is certainly set to change.

The case of Imerman (29th July 2010) drove a coach and horses (or in today's parlance a Ferrari) straight through a partner's ability to snoop and copy documents in this way. In the Imerman case, Mrs Imerman's brothers shared an office with her husband, in which the shared server was utilised to produce documents belonging to the husband in divorce proceedings. The right to privacy is enshrined in the Human Rights legislation and as a consequence the Court had to balance between truth and privacy, and in the case of Imerman, the Court said that her husband's privacy overrode everything else.

Accordingly, gone are the glorious days when lawyers could flourish documents at the last moment to discredit the other side which have been downloaded or obtained in this way. Very often clients will come in with a carrier bag full of documents that they have either photocopied, downloaded from a computer or simply taken from their partner's study, briefcase or filing cabinet. But these days, if a client comes in with such documents the lawyer cannot even look at them, otherwise they could be said to be guilty of trespass. Also, the client who has improperly taken the documents must immediately return them without looking at them.

What Imerman advises is that the parties are allowed to remember what they saw and raise queries in relation to them, or ask the other side to ensure that they are revealed as part of the disclosure, but not produce the documents themselves. Imerman has, as a consequence, become the greatest protection for the liar and cheat in matrimonial proceedings.

Another case known as Sharland is about to proceed to the Supreme Court for a ruling. The issue in this case is that Mr Sharland lied during divorce proceedings in a financial hearing about the true value of his company. Mrs Sharland sought to Appeal the decision in the case, emphasising that it was paramount that the true financial position of Mr Sharland was put before the Court. On Appeal, the Judge said that he perfectly accepted that Mr Sharland had lied, but stated it would not have made any difference to the award that they would have made, and awarded costs against Mrs Sharland. Mrs Sharland has now appealed further and the case is set to be heard by the full complement of the Supreme Court who must look into this entire issue.

In Contract Law, if one party lies, it cannot be ignored. There is an emphasis in some of the present cases, including the recent case of Prest and Petrodel Resources Limited, that there should be parity between all of the Divisions of the Court whether it be Queen's Bench, Family Division or Chancery. The same rules should be applied to each in terms of evidence and balance.

The Supreme Court must now consider very carefully in a swirling political climate as to what must take precedence. Should truth trump everything? Should the right to privacy, including protecting documents, phone messages etc. that the other side should not have had access to, be ignored? Should this be the case even though they would reveal the truth about the intentions of the other party or the true extent of their wealth? A balancing act is very sensitive, particularly in view of the findings of the Leveson Inquiry where the right to privacy was upheld as the most important factor.

It is very much hoped that the Supreme Court will consider the whole issue of balancing the truth, privacy and issue of perjury against the need to bring finality in matrimonial proceedings. It should also bring about the opportunity to re-examine the findings of Imerman, which by its very definition has straight-jacketed so many matrimonial clients and prevented truth from being placed before the Court as well as justice being carried out.

One client, who I advised some while ago, was concerned that I was not able to look at her documentation even though they contained a clear indication by the husband that he intended to mislead the Court. She asked me, "what if these documents demonstrated that my husband was intending to leave me for another, and dissipate all of our assets which fundamentally affect me and the children and possibly throw me onto the State. Are you saying that I would not be able to rely upon them?" The answer to her query was, "Yes, that is what I am saying. You could take the risk of applying to the Court to injunct your husband and freeze all of his assets, however in view of the recent observations made by Mr Justice Mostyn in relation to the applications for injunctive relief this would be a very risky business. Added to that the potential for a prosecution for downloading electronic communications improperly and facing the risk of costs being ordered." Most clients would not take the action. Accordingly, the case of Imerman has given some dishonest husbands and wives the ability at present to hide behind their misrepresentations or lies, believing that they will be fully protected by this decision.

This issue is crying out for resolution. It has to be the case that the truth about a parties' financial position must trump their right to privacy in order for the Court to have the full jurisdiction to consider a fair outcome. The Court must be able to consider the manner in which the documents were obtained, but without the threat of prosecution, if this is the only way in which one party can provide the truthful position to the Court if their partner is determined to lie.

I would wish to emphasize that I am not suggesting or encouraging anyone to commit a criminal offence, however there must be a balance between obtaining justice, particularly in family situations, and protecting the liars and deceitful. The Human Rights legislation was meant to protect the weak from the powerful. Instead, regrettably, in so many ways, it has been used to protect the powerful against the weak.

Vanessa Lloyd Platt ©

15th September 2014