Coming into force on 6 April 2022 The Divorce, Dissolution and Separation Act 2020 introduced…
Until recently where a married couple was separating, if one spouse obtained information or documents belonging to the other, rules established in the case of Hildebrand (1992) provided that copies could be retained but the originals must be disclosed to the other party. The law in this area has recently undergone a significant change, following the case of Imerman (2010).
Imerman v Imerman (2010)
This was a case in which the Husband shared an office with the Wife’s brothers and had access to a shared computer system. Concerned that the Husband may not fully disclose his financial position, one of the brothers copied documents and information belonging to the Husband. This was then given to the Wife’s solicitors.
Under what had come to be known as the ‘Hildebrand’ rules the Wife’s solicitors disclosed the documents to the Husband’s solicitors. The Husband applied for an injunction to prevent the use of the information and to ensure that all documents were returned to him.
The Court of Appeal held that the documents had been incorrectly obtained and could not therefore be relied upon. Obtaining the documents in this way had breached the Husband’s right to privacy. The Husband was entitled to the return of all documents and information and the brothers were prevented from disclosing any of these to the Wife or her solicitors.
Implications of the case
This case has implications in a day-to-day sense for many separating couples. Upon separation the status of information – including items of post and bank statements – is more likely to be considered to be confidential. If one spouse has accessed documents belonging to the other they would not be able to rely on them. It is no longer acceptable to take copies. The other spouse must be given the opportunity to make full and frank financial disclosure as required by the court in a financial application. In the event that the other spouse does not do so the only route available is for the other person to remember what they saw in the documents without making copies and ask the court to decide whether to accept that evidence.
There is the possibility that the spouse who believes that their former partner has not given full disclosure could apply to the court for an order freezing the other’s assets, or to permit the applicant to enter certain premises to search for and seize information. However such applications are rare and the Applicant must be able to show a strong case before an order will be made.
If you would like advice in this area the please contact one of our family solicitors, Miss Vincent or Miss Booth on 01926 422 101.