The implications of spying on your spouse

JAEREY VELASCO, Partner at Payne Clermont Velasco, explores issues around spying on one’s spouse and obtaining confidential and private information without authority in the context of family law.

When a relationship breaks down and in the process of divorce, it can be tempting to search for and gather up all the information that you can find about your spouse's adultery and hidden assets, to use as evidence in Court proceedings – especially if you and your spouse still share the same home.

In cases where there is a dispute about money, it's common for a spouse to try to take matters into their own hands and secretly find evidence of their spouse's undisclosed and hidden assets.

In reality, by covertly accessing your spouse's phone, rummaging through his documents in a shared laptop, server or cloud storage, or hiring a private investigator to obtain information about his finances, it might do more harm than good in your divorce proceedings. In short, you need to be careful how you go about collecting information and evidence in such proceedings.

The UK landmark case

In July 2010, the English Court of Appeal's decision in conjoined appeals of Imerman v Tcheguiz [2010] 2 FLR 814 and Imerman v Imerman [2010] EWCA Civ 908 dismissed the right of one spouse to use the other spouse's confidential information in the context of divorce proceedings.

The Court concluded that documents secretly obtained by the wife were protected under the Human Rights Act 1998 and that the husband enjoys his rights of confidence. Since the wife obtained the documents covertly, that is, by accessing the information in the husband's computer without his consent, this had led to a breach of confidence. The Court ordered the wife to return the documents back to the husband's lawyers and she could not retain any copies.

Hong Kong Courts’ Position

In Hong Kong, a citizen's right of privacy is protected under Article 30 of the Basic Law. Also, the right of privacy is protected from arbitrary or unlawful interference, under Article 14 of the Hong Kong Bill of Rights Ordinance.

The English case Imerman was notably applied in an employment case Sim Kon Fah v JBPB and Co [2011] 4 HKLRD 45. Furthermore, in the Hong Kong Family Court, the Imerman case has been referred to in divorce proceedings where there has been wrongful access to confidential information.

Consequently, in a divorce case in Hong Kong, a spouse should not access the other party's information and documents if it is stored in a locked compartment (such as a safe or filing cabinet) or digitally in a password-protected file where the password is unknown to the spouse, or otherwise if the other party does not consent to the access of the spouse.

Wrap Up

It is clearly established that even in marriage, individuals are entitled to separate, private lives. Hence, the legal right of confidence and privacy also applies between husband and wife. Most importantly, keep in mind that accessing another person's confidential communications and information without consent of that person is a violation of the Basic Law and could have potential legal consequences.

If you get hold of any information or documents from your spouse without his or her knowledge, your spouse could apply for an injunction in Court to prevent you from using the information or documents in the divorce proceedings.

Consequently, it's best to consult your solicitor as soon as possible if you're unsure whether you're entitled to use information and documents regarding your spouse's personal and financial matters which have come into your possession.

This is not intended to be relied on as legal advice. If you need advice on your divorce proceedings, email jaerey.velasco@ payneclermont.com or call 2527 9538.