GDPR And Your Divorce
Divorcing requires the disclosure of many private and personal details and documents to individuals, organisations, and firms outside of your immediate family. Depending upon how acrimonious the divorce is, relationship details, family health details, wealth details, statements and asset details are all brought to the surface and may need to be disclosed.
This can be quite a scary process because many people have never allowed anyone besides family to access their bank accounts, medical notes, and their private papers.
You may have questions about this process such as –
- Can I go through my ex-partners private documents and use them in the divorce?
- What can and cannot a solicitor or barrister do with your private documents and details?
- Can a law firm or the court use any of this information against you in the future?
- Can they pass this information to other organisations and institutions?
- Will they disclose information to the tax or vat office?
In this Help Guide we will try and give you as much information as we can about GDPR and how it impacts your divorce and what can and cannot happen to your information.
Please note that GDPR is complex, and the information contained in this Help Guide is general because there are exemptions and circumstances where your GDPR can be breached. However, these exemptions are exceptional and the circumstances very serious.
WHAT DOES GDPR STAND FOR?
GDPR is short for General Data Protection Act.
GDPR is a European data protection law that gives individuals more control over the use and disclosure of their personal information. It also provides a framework for how individuals and organisations must safeguard and handle your information.
GDPR was set up to provide lawfulness, fairness, and transparency for all.
AS THE UK IS NOT PART OF EUROPE ANYMORE THEN WHAT ACT DO WE HAVE?
The UK has the Data Protection Act 2018.
WHAT IS A DOCUMENT?
A document is anything that contains information. E-mails, tape recordings, letters, statements, discs, and laptops are all documents.
TAKING GDPR INTO ACCOUNT HOW CAN DOCUMENTS AND PAPERWORK BE OBTAINED IN DIVORCE PROCEEDINGS?
There are only 2 ways private and personal documents and paperwork can be obtained or provided for divorce proceedings:
- Voluntarily.
- Pursuant to a court order.
IF YOU OBTAIN YOUR EX-PARTNERS DOCUMENTS AND PAPERWORK WITHOUT THEIR KNOWLEDGE, CAN YOU GIVE THEM TO YOUR SOLICITOR OR USE THESE DOCUMENTS IN YOUR CASE IF YOU ARE A LITIGANT IN PERSON?
No, you cannot. Your solicitor will not be allowed by law to read them or use them and will have to hand them back.
If you are a litigant in person and you obtain any documents concerning your ex-partner without their knowledge, then you cannot use them. This is because of the precedent set in the Imerman vs Imerman case and the Santi vs Santi case.
WHAT HAPPENED IN THE IMERMAN VS IMERMAN DIVORCE CASE?
The wife had obtained private documents of the husband and given them to her solicitors to use in the divorce. The Judge in this case ordered the wife’s solicitors to return the husband’s documents to his solicitors without making any copies because the documents had been obtained without the husband’s knowledge or the permission of the court.
WHAT HAPPENED IN THE SANTI VS SANTI CASE?
Mrs Santi obtained bank statements belonging to Mr Santi to prove he was having an affair.
Mr Santi applied to the High Court for an injunction against Mrs Santi because she had breached his confidentiality and improperly obtained information.
Mr Santi won, and Mrs Santi was ordered to pay £54K in legal costs to Mr Santi.
WHAT COULD HAPPEN TO AN EX-PARTNER WHO DOES THIS TODAY?
Today if you take any paperwork belonging to your ex-partner without their knowledge then you will be committing a criminal act of theft, burglary, trespass to goods and breach of confidence under the following acts passed by government –
- Computer Misuse Act 1990
- Theft Act 1968
- Data Protection Act 2018
- Criminal Damage Act 1971.
PLEASE NOTE – In divorce cases it is a criminal offence to obtain, retain, make copies, or supply copies of documents relating to your ex-partner without their consent.
HOW CAN YOU THEREFORE LEGALLY OBTAIN DOCUMENTS RELATING TO YOUR EX-PARTNER FOR DIVORCE PURPOSES?
There are many ways you can obtain private documents and information belonging to your ex-partner and if you obtain them this way you can use them in court. They are –
- Request disclosure. You can do this by submitting a questionnaire and request for documents to the court asking for the court to order your ex-partner to forward documents and private papers you feel they have not disclosed. You can submit a questionnaire and request for documents at the beginning of your financial settlement case and/or after your partner has submitted their form E (Financial statement of financial disclosure)
LINK TO OUR L.I.P HELP GUIDE FOR YOUR QUESTIONNAIRE AND REQUEST FOR DOCUMENTS EXPLAINED.
LINK TO OUR L.I.P HELP GUIDE FOR FORM E
- Hiring a private investigator to obtain open-source information
- You can obtain any information that is jointly owned by both parties. This includes bank accounts, property, and investments.
- You can search companies house and land registry for information.
- You can use the pension tracing service for information.
- If you are a company director or shareholder, you can attend a board meeting and obtain information.
WHAT ARE CONFIDENTIAL AND PRIVILEGED DOCUMENTS?
Confidential documents are documents about an individual that they want kept private.
Privilege documents are documents about an individual that cannot be disclosed under law against an individuals will because they were used during the process of the obtaining legal advice.
CAN A SOLICITOR OR BARRISTER USE YOUR INFORMATION AGAINST YOU IN THE FUTURE AND/OR PASS IT ON TO OTHER ORGANISATIONS AND INSTITUTIONS?
As a rule, a solicitor can only disclose your confidential information under 2 circumstances:
- With your consent
- With a court order
Without either of these in place a solicitor or barrister cannot disclose yours or another’s information. Once your case is finalised even then they have a duty of care to keep your information confidential.
CAN A COURT, SOLICITOR OR BARRISTER USE YOUR INFORMATION AGAINST YOU IN THE FUTURE?
Generally, no they cannot. Your files and paperwork will not be used in any future cases you may be involved in. However, if you are asked about previous cases and you mention them then your files may be recalled but in the majority of cases old cases are not recalled unless there is real cause. Even then the judge will probably not permit this information unless a court order has been issued for information about this old case.
IF YOUR GDPR HAS BEEN BREACHED, WHO CAN YOU CONTACT?
In the first instance you must contact the organisation, firm or individual to make a complaint that your confidentiality has been breached. If you are not happy with the outcome, then your next step is to contact the Information Commissioner’s Office (ICO).
ICO address – Information Commissioner’s Office, Wycliffe House Water Lane, Wilmslow, Cheshire, SK9 5AF
ICO telephone number – 0303 123 1113 (Monday to Friday 9am to 4:30pm)
ICO e-mail address – icocasework@ico.org.uk