Forensic Imaging Orders in Divorce Cases

A recent High Court case has highlighted the dangers of looking for your spouse’s confidential information to use it in a divorce. 

What is the problem here?

Both husband and wife have an obligation in divorce proceedings to provide full and frank financial disclosure about their positions.  This is so that the court can try to help them reach an agreement, and if that is not possible, can make a ruling about how their assets should be divided. Obviously, if there are assets the judge doesn’t know about, the order made is unlikely to be fair between the divorcing couple. 

So what do people tend to do?

The problem here is that with divorce often comes mistrust.  It is not unusual for couples to go looking for information about their spouse’s financial position, not trusting them to be open or honest within the divorce proceedings. 

So what is allowed (and not allowed)?

Broadly speaking, information which is freely available, left lying around, historically shared between the parties or relating to joint assets is freely available and can be copied and used in any divorce proceedings.  Information which doesn’t fall into any of those categories and which instead has been locked away or secured, ought not to be accessed.  Solicitors are very used to dealing with documents that are presented to them which have been improperly obtained – they must be sent back to the solicitor acting for the other spouse and copies must not be kept. 

Doesn’t that rather defeat the objective of securing financial information in the first place?

The court doesn’t expect someone to ‘forget’ what they’ve seen.  Of course, once a solicitor has been given the documents that were wrongly obtained, they must decide whether they are relevant to the divorce and if so, they must be disclosed back within the normal proceedings. 

So what is a forensic imaging order?

This is an all encompassing order which allows the court to order a spouse to handover a complete mirror image of all of their data from all of their devices, even if they are stored in the cloud and to provide all of the passwords and log in details necessary to access them.  An independent expert is appointed to do that and then keeps the documents safe until the court has decided which should be disclosed and which not.  Clearly the problem is that such an electronic sweep is likely to pull in all sorts of irrelevant, confidential and in the case of a divorce very personal data, documents, messages, images and so on. 

What did the court do about this?

From the recently reported case of Santi v Santi a husband applied for an injunction to include a forensic imaging order. Strangely, instead of applying within the ongoing divorce proceedings he made a separate application to the High Court. It declined to make a forensic imaging order but at the hearing the wife agreed that she would retain the devices the husband complained she had taken, wouldn’t disclose any of his private and confidential information and would provide hard copy documents to his solicitors. 

What about the costs of the application?

The husband claimed that he had been broadly successful and therefore he should have his costs compensated. The wife disagreed.  Since the High Court had transferred a final hearing on the issue back to the divorce court, she said costs should be dealt with there (and in any event she couldn’t afford to pay the monies sought).  She further argued that it was different when it was a spouse obtaining confidential information because doing so was ‘understandable, albeit unlawful’.

What did the High Court Judge order?

The court ordered the wife to pay 60% of the husband’s costs. That was on the basis that he was largely successful in his application to the court. 

And what will happen next?

In a way, the judge’s decision is a strange one.  The divorce court has to take into account the assets of the husband and wife at the date of determination. If she has been ordered to pay costs to the husband then that creates a debt which reduces her available assets. I strongly suspect that the family court will find a way around the problem by ordering a financial solution that covers both parties’ needs regardless of this application. Arguably, the husband would have been far better making the application within the divorce proceedings themselves and I think that the divorce judge is likely to take into account his reasons for not doing so. 

Dealing with financial disclosure is a complicated matter within divorce.  We offer a free 15 minute telephone chat to anyone who is concerned about financial disclosure or more generally about their divorce case.  Why not contact me via philip.hoddell@birkettlong.co.uk or on 01206 217320 for an initial conversation?