Improperly obtained documents in divorce proceedings

Jan252016

For the court or parties to reach a decision on financial relief, parties are required to disclose their financial positions to each other fully and frankly.  The fight over financial relief in divorce cases can be long and bitter.  If you know or suspect that your spouse is not being frank in his or her disclosure, matters become worse.  With trust between parties often lost in divorce proceedings, it can be difficult to resist the temptation to take justice into your own hands and to gather information about your spouse’s financial affairs covertly as evidence of undisclosed assets or diversion of funds or salting away of property.

Helping yourself by opening your spouse’s post or looking in locked drawers is called self-help disclosure.  It is risky business and can have adverse effect to your divorce proceedings.

In light of the guidance given in cases such as Imerman v Imerman and UL v BK this note explores the consequences of self-help disclosure.

Consequence of self-help disclosure

You cannot use the materials covertly obtained in your divorce proceedings.  You may be liable for criminal penalties, for example, criminal damage or theft if you have broken into your spouse’s property.  Furthermore, your spouse can sue you in civil proceedings for breach of confidence and misuse of his/her private materials.

What should you or your solicitor do if you have covertly obtained documents about your spouse’s financial status?

You or your solicitor must return all of the documents (originals and copies) to your spouse’s solicitor (if he/she has one) immediately.  Your solicitor cannot read the materials.  Your spouse’s solicitor will read them and must disclose the documents that are both admissible as evidence and relevant to your claim, pursuant to your spouse’s duty of full and frank disclosure.

If before that exercise has taken place your spouse’s solicitor is dis-instructed, you or your solicitor must retain those documents pending a further court order.

What if your spouse is not legally represented?

In this case, you or your solicitor must retain the documents, unread in sealed files, and must approach the court for directions.  The court tends to direct you to instruct and pay for an independent solicitor to decide which of those documents are admissible and relevant to your claim and disclose them.  Copies will be provided to you or your solicitor before the documents are returned to your spouse.

Can you rely on your knowledge of the documents to challenge your spouse’s disclosure?  

Yes, you can.  You can tell your solicitor your recollection of the documents and your solicitor can advise you on it for the purpose of challenging your spouse’s disclosure.  For example, if your recollection is that the documents clearly show that your spouse is unjustifiably dealing with his or her assets and that there is a clear risk of dissipation to your prejudice, you can use this as evidence to support an application to freeze your spouse’s assets.  But if you do so, you must candidly reveal that your knowledge derives from illegitimately obtained documents and must explain how you got them.   You must do this even if this leads to a civil suit or criminal proceedings from your spouse.

However, if the recount of your knowledge of the documents involves the revelation of matters covered by the privilege against self-incrimination and legal professional privilege, your solicitor must stop the conversation immediately.  If things have gone too far, your solicitor may have to cease acting for you.

It is also open to your spouse to apply for a court order to prevent you from relying on your knowledge of privileged matters as part of your case.

Joanne Brown

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

If you have obtained your spouse’s financial information without his or her knowledge and want legal advice in your divorce proceedings, please contact:

Joanne Brown
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.