When a marriage breaks down, sometimes, sadly, so does the trust between the parties. This lack of trust is often visible during financial negotiations, where one spouse considers that the other is not being honest about their finances or assets.
Of course, it might be tempting to go through the other parties’ financial disclosure to obtain evidence to prove that a former spouse is not being honest, particularly if both spouses are still living in the same property or have access to documents in the former family home. This way of obtaining documents is often referred to as ‘self-help’. However, the court does not look kindly on spouses who help themselves to the other’s documents.
The Historic Position
Historically, following the 1992 case Hildebrand, whilst the court refused to condone spouses who obtained documents without permission, it did allow spouses to rely on such evidence, as long as it were not taken by force. The court prioritised the overarching duty on the parties to make full and frank disclosure.
The Current Position
However, the Court of Appeal case of Tchenguiz & Others v Imerman in 2010 marked a change in approach by the court. In this case, Mrs Imerman was about to start divorce proceedings against her husband. Mrs Imerman’s brother had concerns that Mr Imerman would not disclose his true financial situation once divorce proceedings were started and as Mrs Imerman’s brother shared an office with Mr Imerman, he decided to access Mr Imerman’s computer and downloaded hundreds of thousands of documents.
The documents were passed to Mrs Imerman’s solicitors who informed Mr Imerman’s solicitors that they had them in their possession and intended to rely on them, as per the Hildebrand rules. Both parties applied to court regarding the matter and the subsequent appeals were cojoined into a Court of Appeal case. A long judgment was handed down but in essence Mrs Imerman was ordered to return the documents to Mr Imerman, and the Court of Appeal confirmed the documents could not be relied upon.
Imerman remains an important case but other case law, such as Arbili, has produced more substantive guidance. The Arbili judgment can be summarised as:
-Documents removed illegally from a spouse must be returned to their owner;
-However, the owner’s disclosure obligation is activated by that return;
-The spouse who has returned the documents can rely on their recollection of the content of any relevant document.
The court has to strike a balance between the need for full and frank disclosure, but also deter parties from obtaining documents illegally. A solicitor must inform their client of the need to return any illegally obtained documents to the owner. If the solicitor is in possession of such documents, the solicitor is under an ethical obligation to return the applicable documents. This applies to originals and copies of such documents.
The ‘self-help’ route is therefore not advisable and the appropriate way to obtain documents and information, includes through questionnaires and court orders for disclosure.
We would be happy to advise you regarding a financial remedy and any issues you may be having in relation to disclosure.
For further information please contact Carol Chrisfield at [email protected]
