Cheat’s Charter or Human Right?

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The rules on using private information in divorce proceedings

In financial proceedings in divorce in England and Wales, there is an absolute rule of comprehensive and ongoing disclosure of finances so that it is possible to negotiate a settlement or make an order after trial in the full knowledge of the financial circumstances of both parties.

Unfortunately, this rule is frequently breached, and in particular by sins of omission. Assets and investments are conveniently forgotten and omitted from the comprehensive disclosure required in Form E and filed at court and exchanged between husband and wife’s solicitors.

If one party has obtained evidence which proves this misleading disclosure, most clients expect that this would be a vital element to produce to the court to prove their case.

For many years there was a way to achieve this under the rules in the case of Hildebrand v Hilderbrand (1992) 1 FLR 244, where a husband who found and copied to the wife’s solicitors some of her private information he had uncovered which established that his wife was not telling the whole truth, was permitted to use it in his case before the court

However, in the case of Tchenguiz and Ors v Imerman (2010) 2 FLR 814, the court took a different view.

Here, the wife’s brother worked in the same office as the husband and downloaded millions of pages from the husband’s private laptop.

After several hearings, the Court of Appeal ruled that she was not allowed to use the documents at trial and must return all to the husband’s solicitor as the husband was entitled to privacy as his human right even in divorce proceedings.

This was seen as a Cheat’s Charter  – how else could the deceived party prove their case?

Fortunately, the more recent case of Arbili v Arbili (2016) FLR 413 heard in the Court of Appeal in 2015, has clarified and softened the Imerman ruling.

The correct procedure now is:

  1. The Imerman documents must be returned to their owner.
  2. The OWNER’S DISCLOSURE obligation is TRIGGERED by that return
  3. The spouse who wrongly obtained the document is entitled to rely on their recollection of their contents.

This means that the owner should return to the finders any documents relevant to their disclosure of finances after the finder returns the documents to them. The question of whether this can be enforced by the finder remains open – watch this space for the result of my ongoing application!

If not successful, my client can still have the owner cross examined on the details she remembers from the documents found.

Not a complete win for the cheated spouse, but definitely a step forward from Imerman.

If you feel your spouse is hiding assets – we have great experience in such cases, which are generally solved by scrupulous analysis of bank statements and business accounts records by our resident two accountants.

Contact us today to schedule a confidential consultation. We’re here to guide you through every step of the process, ensuring clarity and peace of mind. Call us in 01386 555 114 or email us, and let’s start working together towards a resolution.

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