Within the context of financial divorce proceedings, it is very tempting for spouses to “dig” for information which may be useful to their legal teams throughout the process. There are however, very strict rules which must be followed, and govern how and what information can be used, depending on how it was obtained.
The case of Hilderbrand involved a wife’s application to establish the extent to which her husband had secretly obtained copies of the wife’s personal financial documents by taking photographs of them. The husband then raised a questionnaire asking questions of the wife, but to which he already had answers given the documents in his possession.
The Judge ruled that the wife was not obliged to answer the questions without knowing what the husband already knew and crucially, the husband had to disclose all the documents he had obtained. In addition, the original documents, not copies, had to be returned to the wife. This was the first warning to husbands and wives that they should not try and secretly obtain information in the hope it would help their case.
Some years later, the case of Imerman clarified the rule as to whether information obtained secretly by a husband or wife, could be used or even read, by their solicitor. The rules set down by the Court of Appeal were very clear – solicitors cannot always read those documents which belong to the other spouse. The judge said, “it would be a breach of confidence for a husband or wife, without the authority of their spouse, to examine, or to make, retain, or supply copies to a third party of, a document whose contents are, and were (or ought to have been) appreciated by the husband/wife to be, confidential to their spouse.”
Whilst the confidential documents can sometimes be submitted in financial proceedings, the extent to which is can be used or relied upon may be limited if it was obtained improperly.
However, the use of the document does depend on whether it is confidential. For example, if a husband leaves his bank statement lying around open in the matrimonial home, the kitchen, living room or bedroom, it may lose its confidential status. The court will also consider the nature of the relationship and the way the parties lived and conducted their personal and business dealings during the marriage.
You should therefore be very careful when collating information which you think may be helpful to your case and always seek advice from one of our solicitors before taking or obtaining information which may be deemed to be confidential to your spouse. If you take information before checking with your solicitor, it may have to be disclosed, returned and cannot necessarily be used in your divorce case.