The courts have made clear that a person cannot obtain confidential documentation or information in respect of the other party, even if such documentation or information reveals that the owner of it has not been entirely open and honest about his or her circumstances. If information and/or documentation is confidential and the owner has not consented to the other party having access to it, then that other party must not access it or use it.

If the documentation or information relates to jointly owned assets, then both parties are entitled to it, but if it relates to only one party then the other may not access it if it is confidential. Clearly, information contained in locked cabinets or password-protected computer files are intended to be confidential, but confidentiality could equally apply to documents or information that the owner has not tried to conceal, such as bank statements left on a kitchen table, for example. As a rough rule of thumb, information and documentation will be assumed to be confidential if it is thought likely that the owner intended it to be confidential.

The courts have made clear that it is unlawful to take, copy or retain confidential documents, even if there is a suspicion that the other spouse is seeking to obscure their true position. A person who accesses such confidential documentation may face civil proceedings for damages and injunctions, and also possibly criminal prosecution.

If we receive from a client confidential documentation or information belonging to the other party in circumstances where that party has not consented to it being accessed, then we will have to disclose this to the owner or his/her solicitor. We would not be able to use the information or documentation, and might have to cease acting, particularly if we only become aware of the breach of confidentiality after starting to read the documentation.

If a person thinks that the other party is being less than open about their circumstances, there are steps that can be taken through the courts.   These may not be as successful and cost-defective as direct action to access such information but, at least for the moment, the courts have ruled that such direct action is unlawful.