ORJ Family Law Solicitor David Smith outlines some of the typical financial issues arising from separation and divorce.
Upon divorce, trust between spouses can fall to an all-time low. This is particularly true where one party is, or has been, the financial controller in the marriage. Often the other party is concerned their spouse will not provide full or truthful details of their financial circumstances when dividing the parties’ assets.
As part of the divorce process, spouses are required to provide to one another a full and accurate picture of all their financial affairs to place both parties, and their solicitors, on an equal footing. Without this, negotiations are practically impossible.
Upon the issue of court proceedings, this requirement is mandatory and a failure to do so is theoretically punishable as a contempt of court. While most pay proper heed to their obligations, there are some who chance their arm by ‘conveniently’ omitting, or in some cases, hiding the full extent of their assets.
In an attempt to ensure transparency, opponents are tempted to double-check their spouse’s paperwork and computer records without their knowledge or authority. How else can justice be served they say? If not for their partner’s secrecy, there would be no need to do so, or so they believe.
The principles arising from such actions were first considered in the 1992 case of Hildebrand v Hildebrand in which a husband who suspected his wife had always concealed the full extent of her wealth from him copied documents held by her. In the court proceedings that followed the husband then requested information from the wife of which he was already aware. The court refused to order the wife to provide the information, on the basis that the husband’s conduct was wrong and he already knew the answers. The judge also required the husband to provide details of all the documents to the wife’s solicitors. However, once the husband had done so he was entitled to rely on them within the proceedings to show his wife’s true financial worth.
This ruling gave rise to what became known as the “Hildebrand Rules” which, in effect, allowed people concerned about their former spouse’s honesty, to help themselves to documents and computer files, so long as this did not involve the use of force or the interception of documents and so long as the original documents were returned.
This all changed in 2010 with the case of Tchenquiz & Others v Imerman (known simply as Imerman) where the wife’s brother downloaded information from a computer being used by the husband in an office they all shared because they suspected that the husband would try to conceal his assets ahead of his divorce. The information was printed and passed to the wife’s solicitors. The husband subsequently asked for the files, and any copies to be returned to him. The Court of Appeal agreed, and ordered the files to be handed back to the husband’s solicitors.
However, in a departure from Hilderbrand the court stated that the wife should be prevented from using any of the information gained through reading them on the basis that the taking of information, which would otherwise be ‘criminal or actionable’ was not justifiable and a breach of confidence.
While there are many who don’t agree, the decision in Imerman remains good law and spouses should exercise great caution when searching through their former partner’s filing cabinets. Having said that, confidential documents may of themselves be permissible and a spouse is still permitted to ask questions about documents he or she has seen, relying on memory only.
Uncovering what might otherwise be secret financial information can be vital to a fair financial settlement. That said, the importance of obtaining such information legally cannot be overstated.