Can I access my ex-partner’s personal and financial documents?

Can I access my ex-partner’s personal and financial documents? It’s a question we hear regularly, and it’s a bit of a legal hotbed.

When a couple is still married, there’s implied permission to access each other’s mail and confidential documents, but this permission is withdrawn after separation.

Whilst there is an obligation on both parties to provide full and frank financial disclosure relevant to a property division, generally, the Court does not permit parties to obtain the other party’s confidential information themselves to be used within property proceedings. In fact, it is a breach of confidence for a person to examine, make/retain, or supply a third party a copy of or use the information contained in a confidential document.

Sometimes a party may stumble across confidential information, especially if they live separately under one roof. It is understandably frustrating for clients who cannot use the documentation they have seen to prove that their ex has not been honest about their financial situation. Still, some other methods can be used to establish the true financial position:

1. In respect of superannuation, if you know the super fund name, you can apply for a superannuation valuation. In circumstances whereby you do not know the super fund name, as of April 2022, if parties have proceedings in Court, they can now request super information from the ATO through the Court. The new law allows the ATO to disclose the superannuation information about a former partner to the Courts, who will then provide that information to all parties.
2. The Court can Order a party to make specific disclosure. If a party fails to provide the Ordered disclosure, then there may be serious consequences for the non-complying party.
3. You may be able to subpoena certain financial information if you have proceedings on foot.
4. It is also possible to apply to the Court for a search of premises and seizure of relevant property (such as financial documentation, computers etc.) that belongs to your ex-spouse. There must, however, be a real possibility that the property exists and that your ex-spouse will destroy it before the Court is willing to make such an Order. The execution of the Order may not be successful, and it is likely to be very expensive.
5. In circumstances where documents cannot be obtained, the Court has the discretion to make an ‘adverse inference’ against the non-complying party. For example, determine an asset's existence and make an Order that includes the asset.

To minimise the risk of your ex accessing your confidential documents, you should change your email passwords and any settings relating to the Cloud that your ex could access. If you unintentionally obtain a confidential document from your ex, you should let them know immediately and offer to destroy the document you have received.

If you would like to know more about financial disclosure obligations in family law matters, reach out to us today to book an initial consultation with an expert Collaborative Family Lawyer. 1300 414 855.