What’s Yours is Mine and Vice Versa?

Where a marriage has broken down and communication between a couple is challenging, there can sometimes be difficulty in terms of financial matters. Sometimes one party feels that their spouse is hiding assets or will avoid the necessary disclosure of financial information.

As a result, there can be a temptation to look at, copy or take confidential documents belonging to your spouse. This can be particularly easy to do when you are both still living in the same property or you still receive their post (even once they have moved out of the property).

For a time, it was believed that it was reasonable to obtain copies of private documentation held by or sent to your spouse (provided that a number of conditions were met and force was not used). It was felt that you could snoop into their private affairs and obtain documents in order to “self-help” yourself in any financial proceedings.

However, the case of Imerman (Tchenguiz & Ors v Imerman (Rev 4) [2010] EWCA Civ 908) changed this. This was a case where the person doing the “snooping” was not Mr Imerman’s wife, but her brothers. In order to try and protect their sister’s financial position and prevent Mr Imerman from hiding assets, they took private information belonging to Mr Imerman from a server that they shared with Mr Imerman in the course of their business dealings.

The court was very clear that it could not condone someone unlawfully obtaining confidential documents belonging to another, even within family proceedings between spouses. This eliminated the “self-help” position.

If documents are taken (or copied) unlawfully, it is usual for the solicitor of the other party to request the return of the documents, all copies taken and all notes in relation to the contents of the document. Copies of these documents will be taken and held by the solicitor (in case the documents need to be disclosed within the financial proceedings) and the original documents returned to their owner. In extreme circumstances there may even be an application to the court to prevent your solicitor continuing to act for you if you have provided them with confidential documentation that you obtained unlawfully, they have read it and advised you on the contents in detail.

You should never unlawfully read, take or copy any confidential information belonging to another person (even your spouse). Even if the other party does fail to disclose information a court may decide not to let documents be admitted as evidence if they have been unlawfully obtained by you.

As part of the procedure in financial proceedings, each party is required to provide full and frank financial disclosure. Both parties will be able to ask questions based on the disclosure of the other. Therefore, if you feel that assets have not been disclosed, you will be given the opportunity to ask questions to try and seek disclosure (subject to approval by the court).

At Paris Smith, we are able to help you throughout the process of financial disclosure (either voluntarily or through the court process) and assist you with raising appropriate questions for your spouse to answer. If documents are not disclosed, we can make an application to the court on your behalf. We can provide you with help, support and advice throughout the process and try to help you resolve financial matters effectively.

Most importantly, remember that contrary to the old adage, what’s theirs is not always yours and you may not be entitled to their documents until financial disclosure has been ordered or agreed!