The Rise of Spyware in Family Law

• Spying is on the rise, particularly in cases concerning children
• Affordability and accessibility of spyware is contributing to the increase
• More needs to be done to raise awareness of the signs of spying and the repercussions for those that do it

In the digital age, family lawyers are increasingly required to navigate issues that this enables. One of these is the increase in spying in spousal relationships.

Whilst, to some extent, this has always occurred, the evolving sophistication of spyware, and the tactics being used to obtain information is concerning. As technology develops, the type of equipment used in a family law context is constantly changing.

Traditionally, people used audio recordings and CCTV but now we often see cases involving dash cams, car trackers and even secret cameras in soft toys. There is even an iPhone charging device containing a micro-transmitter enabling spyware to be deployed and data to be accessed from a phone on charge. Where this was previously unaffordable for the majority, this technology is now available at a much more accessible rate meaning it’s easier than ever for people to spy.

Not only has the technology moved on, but so have the motives. Prior to the introduction of no-fault divorce, spyware was historically used to garner proof that a spouse was being unfaithful. Now people are no longer required to give a reason for divorce, spying happens more in cases concerning children. There is a particular increase in one parent obtaining recordings or information to try and demonstrate that the other parent has character failings deeming them unfit to co-parent a child.

As a firm, we have observed a significant uptick in the percentage of cases we handle where one spouse is spying on the other – from approximately 20% in 2022 to around 40% in 2023. As family lawyers, it means that we must keep abreast of the evolution of spying and know how to advise clients on both sides.

Advising clients who are spying on a spouse

Many of our clients believe that if they have a recording, they’ll be able to automatically use this in court to support their case, but of course, that’s not the reality. As a result, it’s important that we educate clients on the fact that permission is needed to introduce covert recordings and that the family courts in particular, are usually very cautious of allowing this outside of exceptional circumstances.

Whilst there is an argument that, where there are serious safeguarding concerns about the other parent, evidence of mistreatment might be useful in court, there is still no guarantee that a client would be given permission to use it.

It’s also important to make clients aware of the potential repercussions. Reminding them that everyone has a right to privacy, and that there are legal ramifications for spying, highlighting that it could work against them. In the age of social media, we find that clients are sometimes inclined to share footage on platforms, which can aggravate a situation and result in legal action being taken.

With the use of AirTags, and iPhone features like ‘Find My Friends’ the lines of what is acceptable and what isn’t can become blurred. When emotions are heightened, a client may think looking at a partner’s phone or logging into a social media account is a harmless action, but it can quickly become more sinister.

Supporting victims of spying

If a client believes they are being spied on, advise them to take steps to protect electronic devices. Recommend they seek support from a cybersecurity expert who can check devices for spyware and ensure there are levels of defence, such as anti-virus software, to reduce the chance of it happening.

Additionally, as soon as the separation is finalised, clients should be advised to create new passwords and update security questions for all accounts, as well as logging out of existing devices that may have previously been shared.

With the emergence of smart technology, clients might not even be aware that they could be tracked through things like a doorbell or a baby monitor. Raising awareness of this and encouraging them to disable settings that can allow for tracking, will help to reduce the risk.

When it comes to spotting the signs of spying in a case, if the other party appears to be one step ahead, this is a good indication that they could be obtaining information in some way. While it can happen with any client, generally, the more assets involved in the divorce, the higher the risk of spying.

If someone is looking to gather information to aid their cause, conversations and meetings with lawyers are going to be a target. As such, clients should be advised to think carefully about where they conduct conversations, perhaps opting for in-person meetings over phone calls or email communication if spying is suspected.

Another troubling trend that we’ve observed is an increase in divorce cases with an element of coercive control. Spying is often a part of this, utilised as another method to exert control by tracking location, accessing personal information or preventing someone from seeking help. In cases where spying is more sinister, family lawyers should identify a personal protection issue and advise on the options available, whether that’s a warning letter or an application to the court.

The importance of education

Overall, more needs to be done to raise awareness of the increasing sophistication of spyware and to educate people on spotting the signs that it could be happening to them. If, as family lawyers, we’re able to identify it, then we can guide clients to take steps to protect themselves and their privacy.

We also need to highlight the potential consequences of spying and the fact that covertly obtained information can rarely be utilised, so that those inclined to do so, may think again.