Divorce rule changes mean that using the ‘self-help’ remedy to obtain full and verifiable financial information could be harmful if the correct procedures are not followed.
Evidence has to be exchanged and must be supported by documents such as wage slips, bank statements, valuations for any property, mortgage statements and business accounts. In the past, when one party has feared that the other will not cooperate with disclosure or suspects that they will attempt to hide or move assets, they had a ‘self-help’ remedy available to them.
Previously the family court wouldn’t penalise the often financially weaker party for searching their spouse’s personal and private documents to uncover the true position. This was on the basis the documents they wanted to rely on were copied and immediately returned to their spouse or his/her solicitor.
Condoning the ‘self-help remedy’
Family courts had applied the so called Hildebrand rules, named after a 1992 case of the same name, up until 2010. The family courts did not penalise the taking, copying and immediate return of documents but equally did not sanction the use of any force to obtain those documents, or the interception of documents or the retention of documents. The information contained in the documents, even those wrongfully taken, could be admitted in evidence because of the overarching duty on the parties to give full and frank disclosure.
All that changed when the Court of Appeal handed down its landmark judgment in the Imerman case.
The position today protects privacy and confidentiality
It is now a breach of the other parties’ right of confidentiality to rifle through their private and confidential documents and computer records. The legal position is that in marriage, both parties are entitled to confidentiality and privacy and the right to a personal and individual private life under the Human Rights Act 1998. It is a breach of confidence to examine without the owner's consent, make, retain or supply copies to a third party of confidential material belonging to another person. Anybody doing so risks both criminal and civil sanctions and the court may restrict the use of such information as evidence.
There is no clear guidance on when a document is confidential. In the Imerman case the court took the view that confidentiality can be waived if confidential documents are left available to be seen by others, for example, if left lying around the matrimonial home.
However, confidentiality is not dependent upon locks and keys.
What you can do if you suspect dishonesty
There are remedies available to the suspecting spouse. Instead of self-help, parties are encouraged to apply to the court for a search order or freezing injunction if there are concerns regarding the dissipation of assets, concealment of information or destruction of documents. These orders allow one party to enter premises to search and remove evidence before the other party has an opportunity to destroy evidence of their assets.
This means that if you think your spouse may be acting dishonestly you need to act quickly to obtain the permission of the court to search for their confidential documents. However, the cost of applying for and carrying out such an order must be balanced against the potential benefits and it is important to discuss these considerations carefully with your legal adviser before proceeding.
Self-help becomes self-harm
Parties no longer have a ‘self-help’ remedy and instead could be harming their case if they do not follow the correct procedures. Not only could you be prevented from relying on the information, you may also create a professional conflict with your legal adviser and may even be committing a crime.
If you suspect your spouse will not comply with the duty to provide clear financial disclosure, it is essential to take professional advice before helping yourself to information so that you can be sure you help your case rather than hinder it.