6 April 2022 marked the start of a new digital era for family law – divorce applications can now only be filed online, via the court system’s own portal. Gone are the days of complicated, triplicate paper forms that were impossible for most customers to navigate without help. Now customers just need to answer a few simple questions (complete with guidance notes), upload a photo of their marriage certificate and put in their card details to pay the £593 court fee. This has undoubtedly made the process of filing for divorce faster, more accessible and more up-to-date than it has ever been. Most clients can and do navigate the online system themselves, even if they instruct lawyers about their children’s arrangements or their finances.
While this digital advancement has enhanced and improved family law for its users, the impact of the digital world on other aspects of family law is not always so good.
Many clients live their lives online, on social media, and may find that global reach and instant access have turned against them in the context of a relationship breakdown. The Internet and social media may have created many more opportunities for people to have affairs or cheat on their spouse, but they have also made it much easier to find out. Whether it’s GPS tracking on your iPhone, being tagged in an unexpected photo or private texts arriving on the family iPad, it’s never been easier for your partner to find out where you are and what you are doing
Once a relationship breaks down, that access can become an invaluable source of evidence. A spouse who claims to be suddenly impoverished and lives a frugal life can be undone by social media posts showing their latest luxury vacation. Consultants who specialize in social media and internet mining for evidence of where someone has been and how they lived can be hired; your private (or non-existent) social media presence is no protection if you appear in photos posted by friends or relatives. Few of us leave as light a trail online as we might think, or understand the trail of information we leave behind and what a skilled investigator can glean from it. Debt recovery, asset tracking and enforcement are also major beneficiaries of these techniques and, again, companies are created to meet this market need.
For celebrity and high-profile clients whose image is their way of life, reputational risk may be the most pressing concern. The deeply acrimonious Hollywood divorce of Alice Evans and Ioan Gruffudd, played out via Twitter and Instagram, has been a recent graphic example of a party sharing deeply private family matters with millions of followers, instantly, at the push of a button. and without any of the pre-publication steps, however inadequate, that the tabloids must follow.
Some customers are willing to go beyond what is publicly or legally available, often with disastrous consequences.
13 years ago, Imerman to Imerman re-defined what existing privacy
and discovery rules, developed many years ago when the risk was that exes would scramble to open each other’s mail, go through filing cabinets or open a locked office or desk drawer, anticipated in today’s digital world . In the years since Imerman, family law practitioners have seen a steady increase in satellite litigation around privacy, “hacking” and (mis)use of confidential information. This can range from clients accessing their ex’s emails or online banking post-breakup, to the use of highly sophisticated spyware, and everything in between.
This activity, when discovered, usually transforms what might have been a relatively straightforward case into something much more acrimonious, protracted and expensive. If nothing else, trust between the parties will be lost and the costs incurred for lawyers negotiating for the undertakings, the return of any wrongly accessed information and the details of exactly what was accessed and when.
For some, this will prompt separate litigation in the Chancery Division and the instruction of specialized privacy counsel. This court case will then run parallel to the family proceedings, resulting in spiraling costs and delays. The desire to gain an advantage, or to know what the other person is planning to protect themselves, can be the very thing that torpedoes any hope of a cost-effective, quick and friendly solution.
Digital Dos and Don’ts for Divorce:
Do
- Change passwords on your email and online banking accounts (and
disable any autocomplete feature). - Learn where all the family’s devices are and how they sync. Are text messages sent to your cell phone showing up on the family iPad? Can documents stored in the cloud be accessed from another laptop?
- If you have a genuine concern that your information is not secure, consider having an expert sweep your home and examine your devices.
- Know your social media privacy settings (eg for Facebook / Instagram
/ Tweet). Even if you’re set to private, go through your friends list and consider who they’re friends with and how that information might spread beyond your immediate circle. Consider restricting some or all posts so that only close friends can see them and removing historical content. - Talk to your friends and agree on ground rules for posting and tagging your photos on their accounts, especially if they are public or have mutual friends with your ex.
not
- Post court documents online or refer to what is happening in court proceedings (especially those involving children). This can be contempt of court, which carries the potential for a jail sentence, and will almost certainly fail and damage your case.
- Be tempted to eavesdrop. Even if you still know the password to your ex’s email account, or have an old device that auto-logs in, resist the urge to log in and see what your ex is saying to their friends and family ( or, even worse, to their lawyers). It will be found out and there could be very serious consequences.
If you require further information on anything covered in this briefing, please contact Amy Radnor or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2022
