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What key things do you need to consider before investigating your spouse

When a dispute arises it is common that parties look to collate evidence in order to support their case. When that dispute involves the breakdown of a marriage individuals often find themselves in a situation where they have ample opportunity to investigate their spouse. For example, both parties may be living in the same house, using the same car, accessing the same computer and have extensive knowledge of each other's personal information. Whilst it can be tempting to utilise these opportunities, individuals need to be aware that doing so may result in them committing, or being accused of committing, one or more criminal offences.

What common things do we see that you need to consider?

1. Using a vehicle tracking device to monitor your spouse's movements

It is not illegal to install a tracking device in a vehicle that you own, and in fact it is it becoming more common for these devices to be installed. However, using such a device to track your spouse's movements may amount to an allegation of stalking or harassment. Whether you have committed an offence and the nature of the offence itself will depend on the specific facts of the case. For example: was the device installed for the purpose of monitoring your spouse; is your spouse aware of the device; how are you using the information you are gathering; are you doing anything else to monitor your spouse's movement.

2. Accessing your spouse's digital data

 Individuals are often privy to personal information about their spouses, including knowing the passwords they use to access their digital data. This can lead to spouses logging into each other's emails, social media accounts or banking platforms to look for information which may assist in litigation. Whilst this may feel like a harmless thing to do, simply the act of typing their username and password into a computer could amount to an offence of fraud by misrepresentation, or offences under the Computer Misuse Act 1990 or Data Protection Act 2018. Again, whether a criminal offence has been committed will depend on the facts. For example: how are you accessing the information; are you using your spouse's login details; how often are you accessing your spouse's digital data; has your spouse given you permission to do so; how are you using the information; are you doing anything else to monitor your spouse?

3. Covertly recording conversations with my spouse

Another thing we often see is people covertly recording conversations with their spouse. This is not in itself a criminal offence but the specific circumstances of the recording may result in an offence being committed. Similarly to above, the individual facts need to be considered. For example: what type of device is being used to make the recording; is the device hidden somewhere for the sole purpose of monitoring your spouse; are you only recording conversations between you and your spouse or are you recording conversation to which you are not a party; are you doing anything else to monitor your spouse?

In addition to the potential criminal offences discussed above, if you engage in excessive monitoring or tracking your spouse you could also face allegations of domestic abuse offences, in particular, the offence of controlling or coercive behaviour in an intimate or family relationship.

Stop and think; is this a criminal offence?

It is essential to understand the risks before you undertake any sort of investigation into your spouse. Doing any of the above could amount to an offence but each case will turn on its facts. It is important to discuss your particular situation with a criminal solicitor before taking any action.

Equally so, if you suspect that you may be a victim of any of the above offences you should take advice from a criminal solicitor who will be able to discuss your options with you and can assist with making a report to police if appropriate.

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