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Family Law Blog

Comment on divorce & family law 

Divorce protection removed by ruling

6 Comments

 I blogged last year about an ongoing divorce case involving two brothers who had used what they considered to be damning financial documents from their brother-in-law’s computer to help in their sister’s divorce case. They claimed the documents, held on a computer, showed the estranged husband was not giving full financial disclosure and had “hidden” assets.

At that time, the case was ongoing. It has now moved on and the ruling is in. And the landmark decision from the Court of Appeal removes protection previously afforded thousands of people in divorce proceedings.

Until the judgement this month, spouses who unearthed information showing their partner was “hiding” money - therefore not giving the court a true picture of their assets to help in reaching a fair financial settlement – could copy it and put it before the courts to aid their case. These were the Hildebrand rules.
But the court reversed the principle, intended to help those without significant clout, in a case involving a millionaire.

Property tycoons Robert and Vincent Tchenguiz had attempted to use information about the financial affairs of their sister's multi-millionaire husband at her divorce hearing. However, following the ruling, they must comply with a High Court order to hand back to Vivian Imerman the documents copied from a computer. The businessman successfully claimed that the brothers, two IT staff and a solicitor had no right to retain or use the material which was downloaded without his knowledge from a computer in Mayfair offices they shared.

The judgement came as a surprise to me. The precedent was there for this being allowed and backed by case law. The existence of the papers suggested there might be additional information available to the court about Mr Imerman’s financial position that would not otherwise have been disclosed. To make a fair assessment of assets, a court needs to be in possession of the all the facts. This ruling means that anyone attempting to obtain such evidence in future could face a criminal charge. This has to put them at a disadvantage and leave the courts in the position of not getting the full picture in some cases.
It leaves little room for estranged wives – or husbands – particularly those in a weaker financial position, to make investigations to come up with the proverbial “ace up their sleeve” if they feel their ex-partner is not being completely transparent about their finances.

I fear this development does nothing to improve the image of divorce.


Andrew Woolley
Divorce lawyer

Comments

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Should it have been such a surprise to family lawyers? All the court have really said is that we and our clients can’t expect to receive exemption for doing things that are specifically forbidden, indeed in some circumstances specifically criminal offences, under the general law, just because we may turn up evidence. There are specific rules of evidence, and how it can be obtained. As the court pointed out in this case, the information was “gathered” before the husband was even legally required to disclose the information.
I attended a very interesting Resolution lecture with a family lawyer and a computer law lawyer a year or so ago, where the computer specialist was absolutely gobsmacked at what family lawyers thought could be deemed acceptable by way of “hacking” or indeed “gathering information”. He couldn’t understand why we thought our clients should be immune from clear criminal law: and surely he was right?
It is for Parliament to state when what they have laid down as clear criminal offences, particularly in dealing with data and computers, is to be subject to exemptions.
Is it not just the case that we are being expected to play to the same litigation rules as everyone else, unless Parliament, or the FPR, say otherwise? ...

By Ian Downing on Thursday September 9, 2010

Yes, I agree we shouldn’t be exempt.

It seems, though, bizarre that if say a Husband accidentally leaves a bank statement showing a total he has denied he has then probably neither the statement nor even the info on it can be used.

My fear is that well off people can afford the Court procedures to force proper disclosure but Mr & Mrs Average cannot. ...

By Andrew Woolley on Thursday September 9, 2010

I’m not sure how best to link this thread with similar discussion on Collaborative Family Professionals and Mediators in England & Wales group.

I question, why shouldn’t there some form of exemption for married couples (with legislation if necessary) to allow them equal knowledge (or the right to obtain equal knowledge by self help) before principles including equality are applied to distribute the matrimoinal assets after what should be full and frank disclosure?...

By Colin Mitchell on Thursday September 9, 2010

I think the judgement would still allow a wife to ask the relevant questions about the statement in Andrew’s comment: if he has left the statement in the open it is permissible to copy it and use it: its the “self help” approach that the court is restricting. And it Andrew’s example, there would be good cause, if H had already failed to disclose….

By Ian Downing on Thursday September 9, 2010

There is a sppecific example of the “document lying around” in the judgment isn’t there? It comes down to the reasonable expectation of confidentiality.

If a husband leaves an undisclosed bank statement lying around in the lounge then no expectation of confidentiality would apply (or maybe it would be held to have been waived). If he leaves it lying around in his own study, albeit not under lock and key, then he may well have a reasonable expectation of confidentiality.

The potential for increasing litigation, and therefore costs, is immense….

By Neil Denny on Thursday September 9, 2010

It’s the “potential for increasing litigation and therefore costs” that I’m most concerned about. As lawyers , shouldn’t we lobby (via Resolution?) for legislation which gives greater clarity with update law on what “getting married” or “entering a civil partnership” means, followed by education in advance of a couple commiting to either so that they are aware before rather than after the event? I think that could reduce litigation as “prevention is better than cure”.

However, instead of marriage there’s then the issue of the law which should apply to mere cohabitees, which is a greater minefield for litigation and for a separate discussion….

By Colin Mitchell on Thursday September 9, 2010

What do you think?


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