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The Dangers of 'self-help' Financial Disclosure

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Acrimony and Hostility between parties in divorce and finance proceedings can often give rise to a lack of trust in the financial disclosure submitted by the opposing party. In some cases, this can cause many a mistrusting spouse to conduct their own probing investigations into their ex-partner’s finances, believing that the Court would only  draw adverse inferences on the dishonest party . However, this is not the case and caution/ advise should be taken before embarking on such a crusade!

Documents obtained through self-help disclosure are called “Imerman documents”, after the Court of Appeal case of Tchenguiz and Ors -v- Imerman. The Imerman case concerned a married couple and the wife’s brothers shared an office with the husband. The brothers were concerned the husband would attempt to conceal assets that should be included in his financial disclosure to their sister and downloaded documents from the husband’s computer. The Court held that the documents had to be returned to the husband and that the actions of the brothers constituted a serious breach of the husband’s privacy. The Court of Appeal held that the wife was not entitled to use any of the information obtained, as she had gained it through improper acquisition. In addition, an individual should have a right of confidentiality and separate life, distinct from their matrimonial life, with confidentiality arising out of the nature of the material, rather than how it is kept. Further cases have reinforced this position and aside from the risk to the parties, solicitors also  have obligations and responsibilities  when presented with “self-help documents”

These findings are quite difficult to reconcile, as both parties want the reassurance  of knowing that their spouse has been open and honest in their financial disclosures and have not deliberately and purposefully concealed assets . These cases do not mean that all confidential documents which a spouse obtains improperly are inadmissible however the circumstances where a spouse can go looking for information via  a  “search and find”  exercise are very limited . As our President of the Family Division said

 “It is simply and categorically unlawful for a wife…to breach her husband’s privacy by furtively copying his documents whether they exist in hard copy or electronically. There may be factual issues about whether the documents are actually in the husband’s private domain; but if they are (and they almost always are) then it is wholly impermissible for the wife to access and copy them” (Mostyn J in UL v BK [2013])

 

If you are considering divorce and/or financial proceedings or need assistance with current proceedings, or further advise on this article ,please do not hesitate to contact Johnson Astills to discuss your queries with one of the specialists in our Family Law Department.