Divorce and financial remedy proceedings rely on both parties being honest about their circumstances and providing the court with the information needed to reach a fair outcome. Unfortunately, not everyone approaches the process with the same level of transparency.
You may worry that important facts can no longer be proved or that they will hide assets from the court. The good news is that the family courts take these issues seriously and have various powers to deal with parties who fail to comply with their legal obligations.
What does destroying evidence mean?
Destroying evidence covers any deliberate act intended to prevent relevant information from being available during legal proceedings. This includes, but is not limited to, deleting emails, destroying financial paperwork, disposing of business records, wiping computer hard drives, deleting cloud storage, throwing away diaries or notebooks, altering documents, or deliberately withholding evidence that should be disclosed.
Evidence can exist in many different forms, and may include paper documents, emails, text messages, WhatsApp conversations, social media messages, photographs, digital files, spreadsheets, recordings, or financial records. The key question is whether the material is relevant to issues that the court may need to determine.
Does deleting emails, text messages, or WhatsApp chats count as destroying evidence?
Deleting emails, text messages or WhatsApp conversations does not automatically amount to wrongdoing, and many people routinely clear old messages from their devices without giving it much thought.
However, the position changes where someone deliberately deletes communications because they know they may become relevant to divorce or financial remedy proceedings. For example, deleting messages discussing hidden bank accounts, transfers of money to relatives, or the disposal of valuable assets could be viewed very differently from simply deleting old social conversations.
It is worth remembering that deleting information from a device does not necessarily mean it has disappeared forever. Digital evidence can sometimes be recovered from backups, cloud storage, email servers, or through forensic examination of electronic devices.
What if financial documents have been destroyed?
Each party is expected to provide full, frank and honest disclosure of their financial circumstances. This allows the court to make informed decisions about how assets should be divided fairly.
It is also important to remember that parties involved in financial remedy proceedings owe an ongoing duty of full and frank disclosure. This obligation continues throughout the proceedings and requires both spouses to provide accurate, complete, and up-to-date financial information.
If bank statements, business accounts, tax returns, or accounting records have been deliberately destroyed, this may make it more difficult to understand the true financial picture.
However, it does not necessarily prevent the court from reaching conclusions. Banks, accountants, employers, pension providers, Companies House and HM Revenue & Customs may all hold copies of financial information. Business records can also be reconstructed from accounting software, invoices, supplier records, or information held by professional advisers.
Attempting to destroy financial documents rarely succeeds in permanently hiding assets, particularly where transactions have left an electronic trail.
What if evidence was destroyed before proceedings began?
The timing may affect how the court views the situation, but it does not necessarily excuse the conduct. If documents were destroyed before either party contemplated divorce, it may simply reflect ordinary record-keeping practices rather than any attempt to mislead.
However, if someone anticipated divorce or knew financial proceedings were likely and deliberately disposed of evidence to prevent it being used later, the court may draw different conclusions.
The surrounding circumstances will usually be important, and the court will consider matters such as why documents disappeared, whether there is a plausible explanation, and whether alternative evidence remains available.
What are the consequences of deliberately destroying evidence?
Family courts have broad powers to deal with parties who fail to comply with their disclosure obligations. If the court concludes that evidence has been deliberately destroyed or concealed, it may draw adverse inferences from that behaviour. In other words, the judge may assume that the missing evidence would have been unfavourable to the person responsible for its disappearance.
For example, if business accounts disappear shortly before disclosure, the court may be more willing to accept the other spouse’s argument that income has been understated or assets have been concealed. Equally, where bank statements are missing, the court may scrutinise other financial evidence more closely and question the credibility of the individual involved.
Credibility is often extremely important in financial remedy cases. A party who is found to have been dishonest about disclosure may find that much of their remaining evidence is viewed with considerable caution.
Could there be costs consequences if my ex has been found to have destroyed evidence?
Although the general rule in financial remedy proceedings is that each party pays their own legal costs, there are exceptions. If one spouse has behaved unreasonably during litigation, including by failing to provide proper disclosure or deliberately destroying evidence, the court may decide that they should contribute towards the other party’s legal costs.
This is by no means automatic, but litigation misconduct can influence costs decisions where the conduct has increased the expense or complexity of the proceedings. Destroying evidence often results in additional investigations, requests for third-party disclosure, expert involvement, and further court hearings, all of which increase costs for everyone involved.
What should you do if you suspect your ex has destroyed evidence?
Keep copies of any documents already in your possession and make a careful note of information you believe has gone missing. If you have previous versions of financial records, emails, or messages, preserve them securely.
Avoid attempting to access your former partner’s private accounts or devices without permission. Logging into someone else’s email, cloud storage, or mobile phone without permission can create significant legal difficulties and may expose you to civil or criminal consequences. Evidence obtained improperly may also cause complications within the proceedings. Instead, allow your solicitor to obtain evidence through the proper legal process where appropriate.
If you believe your former partner has deliberately destroyed relevant material, early legal advice is essential. Every case is different, and the best approach will depend on the nature of the missing evidence and the wider circumstances of your divorce.