My Ex is Filming Me and Recording Conversations – What Can I Do?

With a smart phone at their fingertips, everybody seemingly has the technology that was the preserve of James Bond and Q branch just 20 years ago. This brings almost limitless benefits in our day-to-day lives but can often be the cause of upset and dispute between separating couples, particularly when still both occupying the family home or during the course of handovers for contact with children.

Our team of expert family lawyers in Milton Keynes are ready to help support you through the entire divorce process. It is important to get professional legal advice as early as possible so you know where you stand. The following article offers a helpful summary of the use and misuse of technology in divorce proceedings.

The court is generally slow to embrace the use of this technology in most court arenas. The court will be concerned by what, if any, weight it is to attach to this type of evidence, having concern for whether the parties to the recording are aware they are being recorded, has it been edited in any way, or what context of the recording is lost – what was said before the record button was pressed or stopped? So often, such context is critical to the court’s consideration of a recording. The court would naturally treat a recording of a child or expert in proceedings very differently to an argument between two parties about an affair or whether they have dissipated assets after separation.

The short answer is no, it is not illegal. Recording a conversation that takes place is not prohibited, providing the recording that is made is used for personal use only. This can often be the case in which a party makes a recording as a means of protecting their safety, to preserve evidence, or to enable them to refute any allegations made by other parties to a conversation or dispute.

It is important to understand the context in which a court might be interested in the content of a recording, whether a video or simply an audio recording of a conversation.

If the recording demonstrates domestic abuse, this may be relevant to the court in a determination of arrangements for children or injunctive proceedings perhaps, e.g. non-molestation order application. Recordings of this type are less likely to be relevant to divorce proceedings or associated financial matters on a general issue of “conduct”. However, it may be of more weight in circumstances relating to material non-disclosure of financial assets for example.

Before recordings are considered by the court, permission is usually required to adduce the recordings as evidence. Best practice will require the recordings to be disclosed to the other parties in proceedings before the application is made. It is likely that the court will require a transcription of the recording, provided by a certified provider, as part of the application itself.

Text messages are frequently utilised by the parties in proceedings, to demonstrate communications traded between parties, often in children matters or applications relating to non-molestation order applications. It is common to see text message exchanges appended to witness statements filed with the court, reflecting the difficulties in communication suffered by parties to proceedings in which there is no audio communication to record or video.

Given the near universal breakdown in communication in such cases, it is not uncommon to see parties attempting to record interactions with the children or other associated third parties, in an attempt to bolster their position in the eyes of the court. This frequently backfires.

Covert recordings of children will rarely be admitted as evidence. Section 13 of the Children and Families Act 2014 significantly limits what evidence the court will consider in applications concerning children. In the case of M v F [2016] EWFC 29, the court stated that, “It would almost always be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child was aware of its presence”. The high frequency of recordings, or threats about what a party may use the footage for can be considered a pattern of harassment by the courts when considering non-molestation order applications too, such as in Re C (A Child) [2015] EWCA Civ 1096.

In summary, the use of recordings and videos is increasingly widespread and part of our day-to-day routine as we increasingly share elements of our lives on social media. We are increasingly used to being recorded and recording. However, the use of such recordings in family court proceedings are generally best considered as a shield and not a sword. Recordings and text message exchanges often play a critical role in proceedings but should not be considered as the only necessary form of evidence, given the approach taken by the court in determining the weight to attach to this type of evidence.

Ready to take the next step? As leading  family lawyers in Milton Keynes, our team of family law specialists can advise and guide you from the moment we start working with you. We also have offices in Watford and London. Talk to us in confidence and find out where you stand. Get in touch – we’re here to help.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.