Divorcing couples have now been sent a very stark message from the courts regarding the confidential information belonging to their spouse. For many years the divorce courts have been used to husbands or wives delving into the confidential information of their other half, copying this information and handing it over to their solicitor in the hope that it may give them an advantage in the financial proceedings. These practices, the courts have now decided, must come to an end.

The courts will no longer tolerate what has until now been euphemistically described as “self help”. So long as the searching spouse did not overtly break into premises, intercept original mail or retain original documents, then they would normally be able to rely on them. The rationale behind this is that it often exposed a less than honest spouse. However, in a recent case of Imerman, the Court of Appeal said that it was no longer appropriate for the Family Courts to tolerate such behaviour which would not be allowed in other divisions of the court. At the end of the day they have made a very simple rule that interception or theft of documents is wrong regardless of the context in which they are obtained.

The Court of Appeal has held that the searching spouse may be at risk of various claims by their other half if they have inappropriately obtained information. The penalties which might be imposed will depend on the severity and circumstances of the breach but the very clear message being sent out is that this is no longer a practice which will be tolerated.

The Court of Appeal have made clear that the proper course of action (if one suspects the spouse of hiding information) is to firstly apply to the court expressing one’s concerns (without letting the other half know) and to request “a search and seize order”. This would certainly up the ante in most divorce cases as the first someone may know of such an order is when a team of investigators/auditors turn up on the doorstep demanding to enter the premises and seize information and records. Many divorce lawyers have concerns about this for obvious reasons. It really will increase the temperature in cases as well as the cost if such procedures are to be invoked. Whilst this may well be the appropriate practice in commercial litigation, to provide this method into family cases worries a number of divorce lawyers.

Also much has been made in the press of this being seen as “a cheat’s charter” – allowing the more business minded spouse to take steps to avoid providing truthful information and limiting the introduction of damning evidence against them.

At Paris Smith we see the sense in the Family Courts operating to the same rules as other courts but the by-product of this could lead to a number of both odd and unjust results in many divorce cases. For example, a wife may have evidence that the husband has assets hidden abroad but would not be able to introduce that evidence unless it had been properly obtained. How can a court possibly make a fair decision on the division of the assets if a substantial chunk is being ignored simply because the method by which the information is introduced is not considered lawful?

We would welcome your comments either from your experiences or thoughts in general as to the impact this will have on cases going forward.

Tags: confidential information, divorce, family courts, imerman, self help