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A Cheat’s Charter? Where does the Law now Stand on Self-Help in Divorce?

04.07.2011 Family & matrimonial

Until the widely reported case of Imerman v Tchenguiz at the end of 2010, the law on self-help in divorce was fairly clear – or so we all thought. The so-called Hildebrand ‘rules’ (after the case of Hildebrand v Hildebrand) in 1992 were widely understood to mean:

  • the family courts would not penalise the taking, copying and immediate return of documents, but would not sanction the use of any force or criminal act to obtain the documents, or the interception of documents;
  • the evidence contained in the documents, even those wrongfully taken, would, however, be admitted in evidence because of the overarching duty on the parties to give full and frank disclosure of their financial circumstances; and
  • the wrongful taking of documents might lead to findings of litigation misconduct or orders for costs.

Following Imerman, it now seems that it is no longer lawful for a spouse to make use of financial documents, however relevant, that he or she ‘just happens to come across’. In the writer’s opinion, this is an extremely worrying turnaround. It goes to the very heart of the family courts’ ability to do justice between the spouses, particularly when a spouse refuses or is unwilling to provide full, frank and honest financial disclosure. The previously used self-help remedy now appears to be consigned to legal history.

However, it is important to note that the Hildebrand rules did not permit the removal or taking of documents by whatever means, as the case of T v T (Interception of Documents) 1994 highlights. Here, a wife broke into her husband’s office, intercepted his post and stole a diary. Although her actions were described by the judge as “reprehensible”, nevertheless the information obtained was still admissible for the purposes of her financial claims against her husband. Such information did indicate that the husband had been less than candid about his true financial worth.

The case of R v Watters serves as a reminder that the courts have never tolerated some kinds of behaviour in which spouses may engage to elicit financial information. Here the husband was sentenced to four months’ imprisonment for installing spyware on his wife’s computer for the purposes of detecting hidden assets. Eleven months of computer surveillance proved that the husband’s suspicions were groundless.

Following Imerman, married couples are not now excepted from the rule that every person has the right to privacy. Confidentiality exists between spouses whether prior to or after a breakdown in their relationship and whether divorce or other legal proceedings have been issued or not.

Now, in considering whether or not a document could be accessed, one has to ask “would the other spouse consent to these documents being accessed and copied?” If the answer is “no” then it is likely that the document is confidential and there is a risk of a claim by the other spouse for breach of confidence, trespass of goods, breach of Article 8 (the right of privacy) of the Human Rights Act 1998, a criminal offence under the Computer Misuse Act 1990 or a criminal offence under the Data Protection Act 1998. Penalties may include a court refusing to admit the information obtained, an order to change solicitors and an order for costs.

So, what can the spouse do, who suspects their former spouse is dishonestly hiding their assets, in order to reduce or defeat their claim? There appear to be at least three options:

  1. put faith in their former spouse that he/she will make full, frank and honest disclosure; or
  2. hope that the Court will make adverse inferences from a lack of full and frank disclosure; or
  3. utilise one or more of the court sanctioned remedies available to them.

Briefly, such remedies include the following:

  • Search Orders: these allow a spouse to enter the other spouse’s premises (usually accompanied by another supervising solicitor appointed by the Court) to search for specified material and seize/copy it. However, a spouse cannot enter premises by force and, if met by refusal, the consequences for the other spouse can be contempt of Court or adverse inferences being drawn. Such orders are not commonplace. In order to obtain such an order, the spouse must show that there is clear evidence that incriminating evidence is in the possession of the other spouse together with a real possibility that it may be destroyed. Therefore a mere “fishing expedition” will not suffice!
  • Restraining Orders and Freezing Injunctions: this requires the other spouse to preserve and thereby not to destroy, tamper with, cancel or part with possession of, an article or document.
  • Court-Appointed Receiver: to investigate the whereabouts of assets, a Receiver can take control of assets and where appropriate repatriate them to the UK. Such an appointment may be appropriate where, for example, a spouse has not declared all their assets, there is a risk of asset dissipation, assets require professional management, and/or there is non compliance of court orders.

As with all court remedies, one must always consider the costs and proportionality of embarking on any of the above courses of action now that the much-used remedy of self-help appears to be dead. It remains to be seen whether its death will still enable the courts to do justice between the spouses or if rights of privacy will prevail at the expense of justice.

“Proportionality” is now specifically mentioned in the new Family Procedure Rules 2010. The overriding objective of the court is to deal with cases justly and this includes dealing with the case in ways which are “proportionate to the nature, importance and complexity of the issues.” Given the substantial costs involved in applying for any of the above remedies, it is likely to be only the preserve of the spouses in “big money” divorces.