recent, high-profile divorce cases have highlighted long running issue of what are the acceptable lengths a party can go to when they are convinced that their ex is hiding or undervaluing assets which they believe should be part of a divorce settlement.
The first involves the chef Marco Pierre White, who has been given the go-ahead by the Court of Appeal to challenge his estranged wife’s lawyers over the copying and retention of his personal papers that contained information about his personal wealth.
The second involves the tycoon Robert Tchenguiz and the estranged husband of his sister Lisa – the former owner of the Whyte & Mackay whisky company, Vivian Imerman. Robert Tchenguiz went through files on a computer that Imerman used in the offices that they shared, and downloaded documents setting out his personal finances – enough to fill seven lever-arch files. He had been worried that Imerman might hide some of his fortune from their sister.
It highlights the issue of just what is acceptable in divorce rulings, and whether information gathered in these sorts of ways is admissible in court. The issue has exercised family lawyers for many years. Divorcing couples are under an ongoing legal obligation to provide full and frank financial disclosure and must answer any reasonable questions asked about their financial affairs.
Both parties should be made aware that if any material disclosure comes to light, even after a settlement has been reached and a court order made, the courts have the power to reopen the case. The court can set aside any previous agreement and make a new order, which will almost certainly involve both a costs order and a punitive award against the offending party.
Even after receiving this advice from their lawyers, individuals will still say to themselves: “They think they are above the law, and that won’t stop them.” “They have always been secretive about our financial matters”, or: “This asset/company was in the family long before I married, or is based abroad and always has been, they know nothing about it, so why should I disclose it?”
So if a spouse decides to turn private detective, what is acceptable? People should know what is permissible behaviour and what is not, and in a world of advanced technology, it is no longer enough for lawyers to advise clients not to steam open their spouse’s letters. Hard discs, email and the merging of personal and business information on PCs have changed the rules. Intercepting the post is a criminal offence. Breaking into a study or filing cabinet or hacking into a personal computer which is password-protected, copying or downloading files is unacceptable behaviour.
However, if post and documents are left around the house, car or office, and you “happen to come across” information which you believe will enhance your case, then this has been deemed to be permissible. If one party does come across such information and they make a copy, then it is essential to immediately inform your own and the opposing lawyers that you have accessed this information, and return any original documents without delay.
Both the Marco Pierre White and the Imerman cases raise two fundamental issues; firstly, are the documents obtained by unorthodox methods admissible and secondly, if they have been, what should be the consequences? However the real question could be “should the other party have produced this information or document voluntarily?” If the answer is yes, then it must be admissible in some form. Furthermore, if they had revealed the information or documents in the first place as they were legally obliged to do, then should they profit from their failure or omission by seeing their spouse penalised?
Carol Ellinas heads the family law department at Winckworth Sherwood