This blog comes with something of a health warning: it is one of our slightly more technical topics. Bear with us though, please, as it’s important if you’re currently thinking about, or going through, divorce.
We’re going to talk about information, both in paper form and on computers or other electronic media within the context of divorce and dissolution proceedings. The relevant issues are what is yours, what belongs to someone else, what the solicitors can see, what is allowed and what is forbidden. Having an idea of the rules can stop you from unwittingly getting into hot water.
Sadly the breakdown of a relationship is often accompanied by a breakdown in the trust between the people involved. As family lawyers, we are used to seeing spouses, often wives, who are concerned that their other half might conceal or move assets in order to protect them from being shared out as part of the financial settlement on divorce. Until a couple of years ago, the accepted response to this could be termed “self-help” – things are very different now, and self-help has effectively been outlawed.
Until fairly recently, spouses would routinely search for and copy, or sometimes take, paper documents and electronic information belonging to their estranged other half. The information would often include bank statements, financial documents, correspondence, emails, notes etc. Usually the documents were handed to us, and could then be used to flush out missing information or to undermine the (usually) husband’s case as to his apparent financial situation.
It used to be common practice for judges in the family courts to allow the clandestinely copied documents to be used and admitted into evidence. Certain rules were developed (known as ‘Hildebrand rules’) which said that so long as you didn’t break into a locked cabinet or other property, and took only copies, not originals, then the information would be allowed as evidence by the courts. Despite being legally dubious, the aim of not letting a deceitful party get away with pulling the wool over the eyes of the court usually justified the underhand means of obtaining the information.
However all this changed a few years ago with the Court of Appeal case known widely as ‘Imerman’. By way of background, Vivian Imerman is chief executive of the Del Monte tinned fruit empire. He shared offices with his wife’s brothers, Vincent and Robert Tchenguiz, who suspected that there were about to be divorce proceedings and took vast amounts of financial data and documentation from Mr Imerman’s computers. His wife wanted to use the information in their divorce proceedings, but he issued court applications for the return of the purloined information and an injunction banning his wife from using it. The rules developed in these circumstances have affected all couples since.
The Court of Appeal in this case decided that spouses may not breach confidence by taking material owned by the other, whether originals or copies. Where confidence has been breached, it is likely that an injunction application will be successful to stop the material being used as evidence. Damages can also be claimed for breach of confidence.
So what exactly is confidential information? There isn’t a list, as such. Bank statements kept secretly or computers which are password protected, and to which the other spouse does not have routine access, will be confidential. A bank statement left lying around in the kitchen, joint accounts, or information on a family computer to which both spouses have free access may not be. It all really depends on how the family conducted their financial affairs during happier times. Confidence appears to be contextual. However, taking information may also amount to theft, or a criminal offence under the Computer Misuse Act or Data Protection Act.
Solicitors are not allowed to see information removed surreptitiously from another party in proceedings. If they do, it is possible a court will prevent them from acting further in the case. So what is someone to do if they suspect that the other spouse has, or is about to, salt away assets to put them out of the reach of the court? In some cases, it is possible for the court to grant orders for assets to be frozen or seized, or premises searched in order to preserve information or assets whilst proceedings are ongoing. These orders are draconian and something on which you would need clear legal advice.
The position now with regard to confidential information is not all that clear, and unhelpful. There are many grey areas – this blog can only touch on some of the more common issues, and it is essential to take specific legal advice on information matters. The fundamental point is that if you embark on any sort of information “self-help” it might render you liable to civil or criminal legal action, and restrictions on future legal advice.
• Be aware of the duty of confidence which exists between spouses and civil partners – simply being married or in a partnership does not entitle you to see all information belonging to the other, especially after you have separated;
• Do not access your spouse or partner’s computer, email, hard drive, usb stick, etc, unless you have their permission;
• Handing over information to your solicitor is not the answer –they are not allowed to read it, and if they do, they may not be able to act for you anymore. Instead, if you have real concerns about assets or information being hidden or moved, speak to your lawyer about the options you have for making applications to court to preserve assets or information.
If you’d like to make an appointment to discuss any aspect of confidentiality of information, please give Gail, Simon, Adam or Sue a call on 01223 443333.