The end of self help in divorce

“A Cheat’s Charter”. That’s what the wife’s solicitor called a recent decision in the husband’s favour by the Court of Appeal in the case of Imerman.

In financial proceedings arising from divorce, it has long been considered acceptable for a party (usually the wife) to produce copies of her husband’s bank statements and other confidential documents as proof of his financial circumstances, as long as she returned the originals and didn’t use force or intercept mail. This was a powerful method of self-help in many cases where the husband was perhaps less than honest in his duty of full and frank disclosure.
In the case of Imerman, the husband shared an office and computer system with the wife’s brothers. One of the brothers accessed and copied information and documents belonging to the husband from a server in the office. The Court of Appeal ruled that the files must be passed to the husband’s solicitors and that the wife was not entitled to retain any copies of the documents. The wife and her solicitor were also restrained from using any information they had gained from reading the documents.

The court felt that whilst there is a need to ensure that a party does not conceal assets, this does not entitle the other party (or someone on their behalf) to breach their spouse’s right to confidentiality. Nor does it entitle them to commit theft or offences under the Data Protection Act.

This case is a stark warning to spouses and solicitors that everyone enjoys a right to confidentiality and that this is not diminished by marriage. If a solicitor takes the view that a document is not confidential and proceeds to use it, they may find themselves personally subject to proceedings brought by the other party. The solicitor may also be prevented from continuing to act within the divorce proceedings.

So what is meant by ‘confidential’? A document lying on the kitchen worktop at home may not be confidential; the same is unlikely to be trueof a document locked in a drawer of the husband’s filing cabinet. Solicitors and spouses alike will have to be very cautious.

If an important document is ‘confidential’ and cannot be used, what then? The wife will have to rely on the husband’s disclosure being complete and truthful. If it’s suspected that it isn’t, an application for ‘search and seize’ or ‘freezing’ orders is possible, although technically difficult and very expensive to obtain. Other options are to challenge the disclosure bywritten questionnaires, or cross-examination incourt, which may reveal the true picture or at least allow the court to draw adverse inferences from a lack of honesty, and make a more favourable decision in the other party’s favour.

The bottom line here is that Imerman has given a distinct advantage to the party controlling the assets. Spouses and solicitors will need to be resourceful and creative in tackling any shortcomings.

For further information and advice on divorce proceedings, contact Fiona Kellow.

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