Bar on Divorcing People Discovering Spouse's Hidden Assets

A decision by the Court of Appeal to bar divorcing people from secretly obtaining documents which could prove a spouse is hiding assets might prove to be a worrying development in Family Law.

In the case of Imerman v Tchenguiz the brother of the divorcing wife downloaded confidential documents from the husband’s office, which he handed over to his sister for use in her divorce proceedings.

For many years a practice has developed in the family courts whereby, if documents relating to the spouse’s financial situation have been obtained through improper channels, it has been the courts’ practice to admit the documents in evidence. These documents are usually called ‘Hildebrand’ documents.

In the case of Imerman however, the Court of Appeal has upheld an injunction granted by Judge Eady which required the return of all the documents to the husband and prohibited the disclosure of anything obtained from the server of the husband’s computer to any third party, including the wife and her solicitors. The law invoked in this decision was that of breach of confidence. It is an actionable breach of confidence for a person without authority granted by the other to examine, make, retain, or supply to a third party a copy of or to use the information contained in such personal and private documents.

Therefore the Hildebrand rules no longer appear to provide a defence for breach of confidence. The case of Hidebrand is no longer authority that justifies the copying of documents as long as no force was used and no originals were retained.

There is still the possibility of appeal.

Elizabeth Bettes

Published on 26/08/2010