How to have a tech-savvy divorce

6 April 2022 marked the start of a new digital age for family law – petitions for divorce can now only be filed online, via the court system’s own portal. Gone are the days of complicated paper forms, filed in triplicate, which were all but impossible for most clients to navigate without help. Now clients must only answer some simplified 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 speedier, 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 solicitors in relation to their child arrangements or their finances.

While this digital advance has streamlined and improved family law for its users, the impact of the digital world on other aspects of family law is not always so benign.

Many clients live their lives online, on social media, and can find that global reach and instant access 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 deceive their spouse, but they have also made it much easier for them to get found out. Whether it is the GPS tracking on your iPhone, being tagged in an unexpected photo, or your private texts coming up on the family iPad, it has 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 evidential resource. A spouse who claims to be suddenly impoverished and living a frugal life can be undone by social media posts showing their recent lavish holidays. Consultants can be employed who specialise in mining social media and the internet for evidence of where someone has been and how they have been living; a private (or non-existent) social media presence of your own is no protection if you appear in photos posted by friends or relatives. Few of us leave as light an online footprint as we may think, or understand the information trail we leave behind and what a skilled investigator can piece together from it. Debt recovery, asset tracing and enforcement are also major beneficiaries of these techniques and, again, companies have sprung up to meet that market need.

For celebrity and high-profile clients, whose image is their livelihood, reputational risk can be the most pressing concern. Alice Evans and Ioan Gruffudd’s deeply acrimonious Hollywood divorce, played out via Twitter and Instagram, has been a graphic recent example of one party sharing deeply private family issues with millions of followers, instantly, at the press of a button, and without any of the prepublication steps, however inadequate, which tabloids are required to follow. 

Some clients are willing to go beyond what is publicly or legally available, often with disastrous consequences.

13 years ago, Imerman v Imerman re-defined what the existing privacy
and disclosure rules, developed many years earlier when the risk was warring exes opening each other’s post, going through filing cabinets, or breaking open a locked office or desk drawer, meant in the modern digital world. In the years since Imerman, family law practitioners have seen a steady rise in satellite litigation about privacy, “hacking” and the (mis)use of confidential information. This can range from clients who loginto their ex’s emails or online banking post-separation, right up to the use of highly sophisticated spyware, as well as everything in between.

This activity, when it is discovered, usually transforms what might have been a relatively straightforward case into something much more acrimonious, protracted, and expensive. If nothing else, trust will be lost between the parties and costs incurred on solicitors negotiating undertakings, the return of any wrongly accessed information, and details of exactly what has been accessed and when.

For some, it will prompt separate litigation in the Chancery Division, and the instruction of specialist privacy counsel. This litigation will then run in parallel to the family proceedings, resulting in spiralling costs and delay. The wish to gain an advantage, or know what the other person is planning in order to protect yourself, can be exactly what torpedoes any hope of a cost-effective, speedy, and amicable resolution.

Digital do’s and don’ts for divorce:

Do

• Change the passwords on your email accounts and online banking (and
  disable any autocomplete functions).
• Know where all the family devices are and how they are synced. Do text messages sent to your mobile phone come up on the family iPad? Can documents saved to the cloud be accessed from another laptop?
• If you have a genuine concern your information is not secure, consider instructing an expert to sweep your home and examine your devices.
• Know your social media privacy settings (ie for Facebook / Instagram
  / Twitter). Even if you are set to private, go through your friends list and consider who they in turn are friends with and how information might spread beyond your immediate circle. Consider restricting some or all posts so only close friends can see them, and removing historic content.
• Talk to your friends and agree ground rules about posting and tagging photos of you on their accounts, especially if they are public or have friends in common with your ex.

Don't

• Post court documents online or refer to what is going on in court proceedings (especially those relating to children). This may be contempt of court, which carries the potential for a prison sentence, and will almost certainly backfire and damage your case.
• Be tempted to snoop. Even if you still know the password to your ex’s email account, or have an old device that is automatically logged in, resist the urge to log in and see what your ex is saying to their friends and family (or, even worse, their lawyers). It will be found out and may well have very serious consequences.

If you require further information about 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.

This article was first published in ThoughtLeaders4 HNW Divorce Magazine, Issue 10.

© Farrer & Co LLP, October 2022