can i record my ex?

Can I record conversations I have with my ex?

Dec 2nd, 2021

Lydia Brehm, Paralegal

In an evolving digital age, the abilities to record one another are endless. When you are going through conflict with your ex-partner, it is natural to want to gather any evidence you can to help build up your case. Many of us have phones that allow voice and video recording. So, can you use this feature to record the conversations you are having with your ex?

If you and your ex-partner have agreed to record a conversation so that you can keep a record of what was discussed, it would be a good idea to start the recording by acknowledging that you both consent to it.

Covert recordings

However, it is more likely that you are hoping to record your partner without their knowledge. Under the Data Protection Act 2018, you are not prevented from covertly (secretly) recording someone if it is for personal or family use. This means that if you do choose to record your partner, you must not share that publicly, otherwise you risk breaching data protection rules. But even though it would not be against the law, if you are going through Family Proceedings, we need to consider how the court will view this type of behaviour.

At the moment, covert recordings are allowed to be used as evidence in Family Courts only at the discretion of the court. This means that it is up to the court whether or not they accept a recording as evidence in your case. Even if the court do accept the recordings, previous cases have shown that they are unlikely to give much weight to this as evidence.

If there are children involved, the court’s top priority is the welfare of the children. This is called the ‘paramountcy principle.’ If you are secretly recording conversations with your ex-partner, there is a risk that you are contributing to an acrimonious, suspicious environment being built around your children, especially if you are recording when the children are present. This is not in the best interest of your children and could paint a negative picture to the court suggesting that you are adding to the emotional strain that your children may be feeling.

Civil Procedure Rules

Even where there are no children involved, it is a risk to attempt to rely on a recording. The court is governed by the Civil Procedure Rules, which states overriding principles that the court must work in line with. Central to these is the need to deal with a case justly and at a proportionate cost. Given that there is so much uncertainty around whether the courts will accept recordings, and how much weight will be placed on them, it could be argued that you and your ex-partner are not coming to the court as equals if one of you has chosen to rely on such evidence, whilst the other has been advised against it. Given that you would then be coming to court on an ‘unequal footing’, the court is unlikely to accept your evidence if it would be unjust to do so. This could mean you have wasted time and potentially money if your solicitors have been reviewing your recordings.

There may be times where you feel the only way to provide evidence of behaviour is through a recording. If this is the case, it would be best for you to speak to your solicitor about this first and take their advice. Often, there will be other ways to prove a certain type of behaviour, such as text messages or other correspondence.

So, although it is not against the law to record your ex (if that recording remains private, remember), it is not advisable to do so, unless you are both consenting to the recording taking place.

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