Surveillance and snooping during divorce, what does the law say?

In the midst of divorce proceedings, it is not uncommon for one or both spouses to feel suspicious or mistrustful. Whether driven by concerns over parenting, fears of financial dishonesty, or emotional distress, some individuals are tempted to monitor, track, or even secretly record their partner’s actions.

In an era of smart technology, from indoor CCTV systems to wearable tracking devices like Apple AirTags, the capacity for surveillance has grown significantly. But what does the law actually say about such behaviour during a divorce?

Why does a spouse spy on the other?

Many spouses turn to surveillance for various reasons. Some seek to prove infidelity or substance misuse, others hope to document poor parenting habits, and some wish to uncover hidden assets in preparation for financial proceedings. While these motives may feel justified on a personal level, they do not override the rights of the other spouse. In fact, improperly obtained evidence can be harmful to the person collecting it.

Modern surveillance methods vary widely. Home security systems and video doorbells are now commonplace in UK households and can be used to record footage of someone coming and going or interacting with children. In some situations, this footage may reveal useful information about a parent’s conduct or living environment. However, if these devices also record audio or capture private conversations, particularly those relating to legal matters or financial arrangements, it can cross a legal line. The legality and admissibility of such recordings often hinge on how they were obtained and for what purpose.

Other increasingly common forms of surveillance include the use of GPS trackers or location-based devices such as Apple AirTags, often hidden in a partner’s bag or vehicle. This kind of tracking, if done without consent, is likely to be considered unlawful and may amount to stalking or harassment. The Protection from Harassment Act 1997 and, more recently, the Domestic Abuse Act 2021 provides clear protections against controlling or coercive behaviour. Courts have recognised that secretly tracking a spouse, even without physical violence, can be psychologically abusive and justify the imposition of non-molestation orders or other restrictions.

What about looking on a spouse’s emails or text messages?

Digital snooping, such as accessing a partner’s emails, phone messages, or social media accounts without permission, is also problematic. The UK’s Computer Misuse Act 1990 makes it a criminal offence to gain unauthorised access to digital devices or personal data. Similarly, the Data Protection Act 2018, which incorporates the GDPR, imposes strict limitations on how personal data can be obtained, stored, and used. Even within a marriage, one spouse does not have a legal right to access the other’s private communications, and doing so, particularly with the intent to use such information in court, can result in legal consequences.

Can covert footage be used as evidence in court?

Whether recordings and other forms of surveillance can be used as evidence in family court is complex. Judges have discretion to allow or exclude evidence depending on its relevance and the manner in which it was gathered. Recordings made openly in shared spaces that demonstrate concerning parental behaviour, such as neglect or verbal abuse, may sometimes be admitted, especially when child welfare is at stake. However, secret recordings made with the intent of catching a spouse out, especially those that intrude on private conversations or were obtained through deceptive means, are less likely to be favourably received.

Family courts are generally cautious when surveillance involves children. Parents have occasionally submitted covert recordings of their children’s conversations or interactions with the other parent in an attempt to build a case for custody. While such recordings may be admitted in extreme circumstances, courts are wary of the emotional impact this can have on the child and often regard such behaviour as manipulative or inappropriate. In many instances, the act of recording may reflect more poorly on the parent who made the recording than on the one being recorded.

One landmark case that shaped the legal landscape in this area was Imerman v Tchenguiz (2010), in which the Court of Appeal ruled that the wife and her brothers had unlawfully accessed the husband’s private financial data from his computer. The court concluded that even within the context of a divorce, parties must not take the law into their own hands. If financial misconduct is suspected, the appropriate route is through court orders for disclosure, not hacking or digital intrusion.

Are there any circumstances where surveillance can be used in court?

Although much surveillance is unlawful or simply inadvisable, there are narrow situations in which it might be considered legitimate. A spouse may, for example, record conversations they are personally involved in, particularly if they feel threatened or wish to protect themselves. It may also be acceptable to collect footage from a home security system that both parties are aware of, provided the use of that footage is consistent with data protection law. In cases where serious misconduct is suspected, such as abuse or concealment of assets, it is sensible to involve a solicitor at an early stage so they can advise you on lawful collection of surveillance evidence and next steps.

What are the consequences of unlawful surveillance?

The consequences of unlawful surveillance can be severe. Aside from potential criminal charges, such behaviour can lead to civil liability for breach of privacy or data protection, restraining/injunctive orders, or, at best, a loss of credibility before the court. In matters of child arrangements, especially, a parent’s attempts to spy on their spouse or manipulate them may influence the court’s view of their suitability to have primary care of the child.

Ultimately, while the desire to gather information during divorce proceedings is understandable, the law provides clear boundaries. Courts expect honesty, transparency, and procedural fairness, not covert investigations or digital spying. If one suspects the other of wrongdoing, the best course is to speak with a solicitor and pursue remedies through the proper legal channels.

Surveillance and snooping during divorce often backfires if carried out unlawfully or in bad faith. The legal system recognises the importance of privacy and due process, and while certain forms of evidence may assist in resolving disputes, the courts are wary of any conduct that undermines trust or breaches the law.