Your Rights - Your Personal Data

diyLAW are grateful to Ishika Patel, any title or position held you want to display, for her article on the impending changes in Data Privacy and Data Handling. This is for general information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


Your Rights - Your Personal Data

 

The General Data Protection Regulation (GDPR) will replace the current Data Protection Act 1998 from 25 May 2018, which governs the processing of personal data.

 

What is personal data? Personal data is any information relating to you, where you can be directly or indirectly identified, including your name, identification number, address or bank account details.

 

What is a data controller? A data controller is a person (individual or company) that determines the purposes and means of processing your personal data.

 

What is meant by “processing”? Anything that is done to, or with your personal data e.g. collecting it, or storing it.

 

I’m still confused – give me an example. Say you want to open a bank account with X BANK. You will normally be asked to fill in an application form. Filling that form with your name and address, means you are providing them with your personal data. X BANK is, therefore, the data controller. Your name and address are your personal data. X BANK collecting that information means they are processing it.

 

So how does the GDPR affect me? Why should I care?

The GDPR gives you more say over what these companies/individuals can do with your personal data. It also introduces bigger fines for data controllers that do not comply. This article discusses the different rights you have under the GDPR, including the right:

 

  1. to be informed
  2. of access to your own personal data
  3. to correct your personal data
  4. to erase your personal data/right to be forgotten
  5. to restrict processing
  6. to data portability
  7. to object
  8. not to be subject to automated decision making and profiling
  9. to be notified of a data security breach.

Right to be informed

You have the right to receive certain information from about the processing activities of your personal data. This information is usually provided in a Privacy Notice – check the data controller’s website, or just ask them if it isn’t clear to you. Information can include the purpose of using your data, your rights as described in this article and your right to make a complaint to the Information Commissioner’s Office.

 

When should information be provided?

If the data is obtained directly from you, then the information should be provided to you at the time the data is obtained.

 

If the data is obtained indirectly, say from a third party, then the information should be provided either:

  • within a reasonable period after obtaining the personal data (within one month at the latest);
  • if the personal data will be used to communicate with you, at the latest at the time of the first communication; or
  • if the data controller intends to disclose the personal data to another recipient, at the latest at the time of the first disclosure.

Right to Access your personal data

You have the right to:

  • obtain confirmation that your data is being processed; and
  • access to your processed personal data.

 

The information should be provided to you within one month of the request.

 

Are there any fees?

Access to your personal data should normally be provided to you free of charge but if your request is unfounded or excessive, the data controller may either:

  • charge a reasonable fee to provide the information or take the requested action; or
  • refuse to act on the request.

 

Additional copies may also attract a further charge. 

 

What do I need to do to get my information?

Write to the data controller including the following information:

  • full name, address and contact telephone number;
  • any information that the data controller can use to identify you from others, for example, a bank account number;
  • details of the information you require including dates where relevant.

It will also help if you say that you are making a “Subject Access Request”.

 

Also have a look on the data controller’s website, as they may have a form available for you to fill in which you may find easier.

Right to correct your personal data:

You have the right to:

  • correct inaccurate personal data; and
  • complete incomplete personal data.

 

What should I do?

Write to the data controller and be clear about exactly what the issue is. Your request must be responded to within a month. This can be extended by two months if the request is complex. If no action is being taken, this should be explained to you including your right to complain to the Information Commissioner’s Office and to a legal remedy.

 

Right to be Forgotten/erase your personal data

You can request the deletion or removal of your personal data where, for example:

 

  • it is no longer necessary for the purpose the data was originally collected/processed;
  • you withdrew your consent and no other legal justification for processing applies;
  • you object to processing for direct marketing purposes (e.g. to be contacted through advertisement);
  • it was unlawfully processed; or
  • it should be erased in order to comply with a legal obligation.

 

Your data should then be erased without delay unless the data controller has to keep it, for example, for legal reasons.

Restriction Right

You have the right to restrict the processing of your personal data when, for example:

 

  • you are disputing the accuracy of the personal data;
  • the processing is unlawful;
  • the data controller no longer needs to process the personal data but you need the personal data for a legal claim;
  • you object to the processing and the data controller is considering whether its legitimate interests override yours.

 

Data Processing Objection Right

You can object to data processing under certain circumstances, including for example:

  • direct marketing purposes (i.e. advertising through, for example, email); or
  • scientific, historical research or statistical purposes.

 

If you object, a data controller must stop processing the personal data unless the data controller either:

  • demonstrates a compelling legitimate ground for processing the personal data that overrides your interests.
  • needs to process the personal data in relation to a legal claim.

Data Portability Right

This allows you to, for example,

  • obtain and reuse your personal data across different services; and
  • transfer your personal data to another data controller.

 

Data controllers must comply with such a request within one month. This can be extended by two months if the request is complex but data controllers must inform you of this and explain why the extension is necessary. If no action is being taken, they must tell you this and why including your right to complain to the Information Commissioner’s Office and to a legal remedy.

Automated Decision Making Objection Right

You have the right to not be subject to automated decision-making, including profiling, i.e. making a decision solely by automated means without any human involvement. Profiling is a form of automated decision-making intended to evaluate certain aspects of you, such as predicting your performance at work, health or reliability.

 

Automated-decision making is allowed in certain circumstances, for example, if you consent to it or the data controller is allowed by reason of law.

Notification of a breach:

If a breach of your personal data is likely to result in a high risk to your rights and freedoms, you should be notified directly without undue delay. The notification should:

 

  • describe the nature of the breach
  • name and contact details of the data protection officer or other contact person;
  • the likely consequences; and
  • the measures taken to address and mitigate the breach.

 

There are some exceptions to the notification, including when the data controller has taken steps to ensure your personal data is no longer subject to a high risk.

 

***

The above is a summary of your rights under the GDPR. There is also additional helpful guidance on the Information Commissioner’s website.

Ishika Patel

 


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Applying for a Divorce using Behaviour

diyLAW are grateful to Whitney Akinnayajo, an LLB student at Arden University for her article in support of public legal educationThis is for general information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


Life can present a range of unpredictable and unexpected circumstances. Sometimes couples grow apart and over time feelings between spouses change. If you have come to the realisation that your marriage has broken down beyond repair and are considering getting a divorce, this article may be helpful in providing you with the information and tools that will enhance your knowledge regarding this process.

This article will look briefly at the divorce process as well as the legal grounds for divorce, with a particular focus on the ‘behaviour’ ground. This is by far the most common ground for divorce in England and Wales, but can also be the most unclear, thus it is the hope that this article will provide a clear understanding as to what it entails.

Please find some keywords surrounding this topic accompanied by their definitions at the close of this article.

 

How to get a divorce

In England or Wales, you are entitled to get a divorce if you’ve been married at least a year and your relationship has permanently broken down. However, your marriage must be legally recognised in the UK; this is inclusive same-sex marriage. You also need to have permanent residence in England or Wales.

If you need more time before making the permanent decision of getting a divorce, you can get a legal separation so that you can live apart without ending your marriage.

 

Starting a divorce application

To start your divorce application (formerly known as a divorce petition), you must have your marriage certificate as this needs to be filed in court to start the beginning process. If you have lost your marriage certificate, you can obtain a copy from the General Register Office. https://www.gro.gov.uk/gro/content/

If you were married outside of England and Wales, you will need to get a certified copy of your marriage certificate from the country where you were married.

You can start your divorce application in any divorce County Court. However, it is best to choose a court that is close to where you live because you may need to make several visits to court before the divorce is completed.

To file your divorce petition at court, you will need the following divorce form; which is the official application for a divorce, dissolution or (judicial) separation (D8).

Link below:

https://formfinder.hmctsformfinder.justice.gov.uk/d8-eng.pdf

 

 

Grounds for divorce

To issue divorce proceedings you must have valid grounds. Under the laws that govern England and Wales, irretrievable breakdown is the only ground for filing a divorce. You can prove that your marriage has irretrievably broken down by establishing that one of 5 things has taken place.

·         Adultery- You must prove that your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse. (This ground is not available for same-sex marriages. Instead, extramarital sexual activity in same-sex relationships falls under the behaviour head.)

·         Behaviour- You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her.

·         Desertion- This is where your spouse has deserted you for a continuous period of at least 2years.

·         2 years separation with consent- You or your spouse can issue divorce proceedings if you have been separated for at least two years and the other party agrees to the divorce.

·         5 years separation without consent- If you and your spouse have been living apart for at least five years then, either of you may issue divorce proceedings without the other party’s consent.

 

If one of these 5 things have not occurred, then divorce will not be able to take place.

 

Behaviour

The ground for divorce that will be focused on in this article is ‘behaviour’; often referred to as ‘unreasonable behaviour’. As stated in the introduction, this is one of the most common grounds for divorce in England and Wales.

Behaviour is used so frequently because;

·         Consent from your spouse is not required

·         There is no specific time period that you must wait before being able to use this as your reason for divorce

Nonetheless, in saying this, you will still need to have been married for a minimum of 12 months before you are able to file for divorce.

 

Proving Behaviour

To prove that you have the appropriate grounds for divorce using behaviour, you must show that your spouse has behaved in a way that you cannot reasonably be expected to live with.

But what constitutes behaviour that you cannot reasonably be expected to live with?

There is a special test to apply:

1. Would a right-thinking person – this is a person with ordinary moral standards – the average person walking past in the street

2. Considering everything about each spouse and the whole marriage

3. Think that the other spouse has behaved in such a way that this spouse cannot reasonably be expected to live with her or him

Therefore, when thinking about behaviour, it may be helpful to imagine what the average passer-by would think if they witnessed the behaviour that you have described take place in a public place.

Would the average person think that the behaviour was unacceptable or unreasonable to live with? Would they think it was normal behaviour between spouses? Would they be shocked by the behaviour?

 

Examples of Behaviour

As stated above, there are varying levels of seriousness to behaviour. Individuals may see some issues as more hurtful to their marriage than others do

Below is a list of allegations which can amount to behaviour which a spouse cannot be reasonably be expected to live with:

·         Devoting too much time to a career

·         Refusing to get a job

·         Relying on you financially

·         Financially irresponsible e.g. failure to support the family, household costs

·         Having no common interests

·         Pursuing a separate social life

·         Being antisocial

·         Lack of emotional support

·         Lack of support in general, around the house, in your career etc

·         Refusal to discuss/work on issues within the marriage

·         Not wanting to engage in any sexual or physical acts/relations

·         Partaking in a sexual activity with another person which falls short of sexual intercourse

·         Violence / Physical abuse (e.g. hitting, scratching, punching, biting, strangling or kicking)

·         Verbal abuse (e.g. name calling, insults, threats, manipulation, bigotry)

·         Gambling on a frequent basis and/or creating debt without your knowledge

·         Drug/alcohol abuse

 

Some of these allegations may not be considered serious by themselves in combination with other allegations would be behaviour which a spouse cannot reasonably be expected to live with.

 

Structure

In your statement for divorce and behaviour, it is advised that you do not just list the examples as this will not be enough for the court to decide whether your divorce should be allowed. Instead, try to write about how this behaviour has made you feel. This will help to communicate the reality of your situation to the court.

Roughly 5 detailed examples should be sufficient.

Below are a few examples of statements that you could write when filing a divorce for behaviour:

·         “My spouse has chosen to spend money on gambling excessively and has not made any contributions to the household. This has caused me to feel…”

·         “My spouse stopped socialising 2 years ago and rarely leaves the house. This has made me feel…”

·         “I have felt a lack of support from my spouse, particularly when he/she became made redundant. As a result, I feel…”

·         “My spouse has been emotionally abusive to me, by frequently threatening me and limiting access to our joint bank accounts. Because of this, I feel…”

·         “My spouse humiliated me in public in front of several people. This made me feel…”

 

Time limit

It is important to understand that when presenting a divorce petition on the grounds of behaviour, there is a specific time limit in place.

If you continue to live with your spouse for more than six months after the last incident of behaviour you will need to have a good reason for continuing to live with your spouse. A good reason could be nowhere to go, no money or you need a stable home for young children. If you can, try to either file your divorce application within six months of the last behaviour incident or show in the petition that the behaviour is still happening. If the behaviour is still happening the six-month time limit will not start.

Allegations can be made in relation to the time when you were living with your spouse or the period after you have parted.  

 

Cooperation/ Reducing acrimony

It is always advisable that spouses try to keep a civil relationship with one another during divorce proceedings where possible. This is because being civil towards each other can help prevent further emotional turmoil as well as speed up the divorce process.

This can be beneficial in helping along divorce proceedings. However, it is understood that in reality this can be understandably difficult and may not be possible or even desirable in certain circumstances (for example domestic or emotional abuse cases).

If it is possible for you to be civil, then sharing the examples of behaviour that you have listed with your former spouse before they receive them through the court is recommended.

If you are on very good terms, you could even ask your former spouse to write the examples of their behaviour themselves to minimise possible conflict. Agreeing the contents of the divorce application can prevent misunderstandings and avoid difficulties further along.

 

 

 

 

 

Key words

Below is a list of key words/ terms that are widely used by solicitors accompanied by their definitions.

Adultery- Voluntary sexual intercourse between a married person and a person of the opposite sex who is not their spouse.

Allegations- A claim or assertion that someone has done something illegal or wrong, typically one made without proof.

Antisocial- Not sociable or wanting the company of others.

Consent- Permission for something to happen or agreement to do something.

Divorce- The legal dissolution of a marriage by a court or other competent body.

Irretrievable breakdown- Not able to be retrieved or put right.

Marital home- A home in which a married couple live together.

Petitioner / applicant - The person that applies for the divorce.

Respondent- The person against whom a petition/application is filed.

Separation- The state in which a couple remain married but live apart.

Spouse- Either member of a married couple

 


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.