The pit falls of self help in disclosure
When deciding how to divide matrimonial assets during the process of divorce or dissolution, both parties are under a duty to provide full and frank disclosure of their financial positions. Once the parties complete financial position has been disclosed, their solicitors will then be able to advise on a fair and reasonable offer of settlement.
In the past, if one party feared that their spouse would not provide full and frank disclosure the family courts would not penalise the often financially weaker party for searching their spouse’s personal and private documents to try and uncover the true position. This was on the basis that any documents they wished to rely on were copied and immediately returned to their spouse or to his/ her solicitor. Thus a party who attempted to deceive their partner by concealing assets in an offshore account could risk their partner finding private documents which could be used as evidence in financial proceedings. Whilst this was never condoned, even documents wrongly obtained could be admitted as evidence.
However, since the recent case of Imerman, it is now a breach of your spouse’s right to confidentiality to rifle through their private and confidential documents. The court will now restrict the use of any information as evidence if uncovered by snooping through your spouse’s emails, listening in on their phone calls or opening mails addressed to them. This exclusion covers documents that you may have been privy to during the relationship but potentially could be considered as confidential now that the relationship is over. The test that is current thought to be appropriate is whether you would look at the document in question if it belonged to a work colleague. If the answer is no then it is likely to be considered as confidential in matrimonial proceedings. Furthermore, this case confirms that a party now risks both criminal and civil sanctions. Therefore not only could any potentially confidential documents cause issues within the matrimonial proceedings but also potentially risk difficulties at work and even criminal sanctions in extreme cases.
The consequences of this ruling are far reaching. A spouse who is concerned that their partner is concealing assets no longer has a “self help” remedy available to them. Furthermore, the court may stop a client continuing to instruct any lawyers who had seen the self-help documents. To complicate matters, the court also went on to say that a judge has a discretion to admit documentation as each case needs to be determined on its facts.
A decision as to what action should be taken needs to be addressed in a cautious and careful manner. The most important lesson from this case is to take specialist legal advice before taking any self-help measures to obtain disclosure.
