It is premature to claim that private sleuths no longer have any role in divorce cases but parties must observe strict rules about permissible searches for information, the author of this article says.

The role that private investigators once played in divorce cases might seem to have more to do with the backdrop of a Raymond Chandler novel than modern-day legal life in a country such as the UK. However, the position is possibly more complex than this, argues Harriet Errington, of the law firm Boodle Hatfield. The views of the author are not necessarily shared in full by this publication but WealthBriefing is pleased to share these insights and invites readers to respond. They can contact the editor at tom.burroughes@wealthbriefing.com

The role of modern day sleuths in divorce proceedings has dwindled considerably in the past few decades.  In former times private detectives were often employed by parties seeking to catch their spouse in the midst of an illicit affair. Nowadays divorce courts pay little attention to the reason for the breakdown in the marriage when it comes to dividing the finances, which begs the question; is there still a place for private investigators today?

The recent case of Arbili v Arbili highlighted the futility of seeking to use an enquiry agent. The husband in this case hired a French “facteur” to look into his wife’s affairs, in particular a property in France. He attempted to rely on information that had been illegally obtained through hacking into his wife’s computer account; documents that he claimed showed she had not made full disclosure to the court. 

The Court of Appeal did not permit him to rely on this information, given the manner in which it had been obtained. All of his efforts had not only come to nothing but also put him at risk of a costs award and even civil and criminal charges.

This case highlights a common problem faced by many going through a divorce: what can you do if you suspect your spouse has not made full disclosure to the court, is hiding or even squirreling assets away. The options available through the court (for example “search and seize” and “freezing” orders) are expensive and can be difficult to obtain, as they require a high burden of proof. This means that many people will understandably be tempted to resort to “self-help” methods such as going through their spouse’s personal belongings, seeking to find a document which proves the existence of a further account or shareholdings not previously disclosed.

Such temptations, as ever, must be resisted. Breaking into filing cabinets, hacking into email accounts, opening unopened post and copying confidential documents is illegal. Those seeking to do so may face civil and criminal charges; the fact that parties are married is no defence. In the context of divorce proceedings the guilty party will be compelled to return all documents, including copies, and may face injunctions and costs orders made against them.

Instead the suspicious spouse would be best to scrutinise the disclosure already provided by the other party in detail, as very often it is possible to trace assets through account transfers and comprehensive financial questionnaires which the court will order on either party’s request.

If one party continues to be unforthcoming with his/her disclosure the court may make various orders, for example requiring disclosure from third parties (such as accountants and business partners), orders for costs against the non-disclosing party and even orders for the reticent spouse to be committed to prison on repeated failure to provide disclosure. Ultimately, if convinced by argument of either spouse (for example illustrating the standard of living during the marriage and evidence that other assets may exist) a court may make assumptions that various assets do exist in order to satisfy the financial claim of either party.

So where does this leave the enquiry agent in the context of such scrupulous rules? All is not lost; there remains work to be done. Private investigators are often employed to ascertain whether either party is living with a new partner, which can have significant financial implications as it may reduce the needs of the cohabiting spouse through shared outgoings and housing costs. Private investigators can be adept at trawling through social media platforms such as Facebook, Instagram and Twitter, in order to ascertain important details as to a party’s lifestyle, including whether or not he/she is working and how money is being spent.

In the majority of cases divorcing spouses will provide documentation voluntarily, in the context of the court process. Any gaps will be ascertainable by their solicitors on scrutiny of the documents that have been disclosed.  For those who suspect that only limited disclosure has been provided, specialist legal advice should be sought as to how best to proceed through the courts.

Wise advice to those wishing to employ a private investigator is to ensure the sleuth will operate within the law, keeping abreast of the developing parameters. If not, the risks to the suspicious spouse in stepping over the line are significant.