Since Imerman v Imerman (click here for our case report) it appears the only safe and legal way to obtain documents would be to obtain a search order.
For the purposes of this article, I will use the husband as the person attempting to evade disclosure within ancillary relief proceedings.
In the case of Imerman, the Court made it clear that the wife could not copy the husband’s documents in a company or house even if she had access to them without forcing entry and that if she gave copies to her solicitors, not only could she face legal proceedings but so could her solicitors, and the solicitor could be forced to cease acting on her behalf.
If a wife believes her husband is attempting to hide assets within financial proceedings, she should ask her solicitor what she can do to stop her husband from doing so. An example of this could be if a husband has been hiding assets using offshore trust accounts or bank accounts where he has been squirreling money away from the previous 5 years since planning to divorce his wife after starting a relationship with another woman and after threatening the wife on regular occasions that if she leaves him, he will make sure she gets nothing.
In such a case, I would have to advise a wife that the only remedy available to her would be to apply to the Court for a search order. However, there are countless problems with such an application, which I will talk about below. The most important to consider is the immense expense such an application would involve with, in my view, not always very high prospects of success, or at least many obstacles in the way of succeeding in such an application.
What is a search order?
A search order would be an order made without notice to the husband allowing entry into a premises to search and remove evidence.
How is a search order obtained?
An application would need to be made to the High Court without, as mentioned above, notice to the husband. To obtain the order, it would be necessary to have an idea of the assets that are being hidden and the documents available to which these assets relate.
What information would I need to provide to the Court?
To satisfy the Court that an order should be made, the wife would have to convince the Court that there is an extremely strong claim and would have to:
a) show that she has more than a suspicion of assets that the husband intends to hide or dissipate;
b) prove to the Court that should the husband conceal or dissipate such assets, this would have a severe affect upon her;
c) illustrate to the Court that the husband has possession of incriminating evidence and there is a real possibility that it will be destroyed or tampered with; and
d) explain that the likely harm to be caused to the husband by such an order being granted will not be disproportionately excessive to the legitimate object of the order.
What are the difficulties in obtaining a search order?
In my view it would be very difficult for most middle-income divorces to overcome the above hurdles. Many spouses have an idea of what assets their spouse may be hiding but have no real evidence and cannot specifically identify the nature of the assets that may be being concealed.
For example, a wife may tell me about bank accounts she believes the husband has that contained £20,000 5 years ago but has seen no documentation since. In these circumstances, it would be impossible to persuade the Court to grant an order and in any event, unfortunately, I would have to advise the wife that the cost of applying for a search order would be likely to far outweigh the £20,000 in question. The wife could rightfully feel that justice is not being done in such circumstances.
What happens if a search order is obtained?
If a wife does manage to persuade the Court that an order should be made, the next step would be to serve the order.
The order needs to be served by an independent supervising solicitor, i.e. not the wife’s solicitor, and must be served upon the husband between the hours of 9.30am to 5.30pm on a week day.
If the order were to be served instead upon a woman (a wife) due to her non-disclosure and she is likely to be unaccompanied at the time, then if the supervising officer is a man, he must also be accompanied by a woman (presumably because the Court fears the supervising solicitor may frighten the timid wife and the presence of another woman would make her feel more comfortable!)
Presuming once again the Respondent is the husband, the supervising solicitor must personally serve the order upon the husband or if it is, say, business premises needing be searched, an employee must be at the premises who has authority to permit the premises be entered and searched.
The supervising solicitor will also be accompanied by a partner from the wife’s solicitors and possibly a computer expert if information contained on a computer is to be considered.
Therefore, there could be around say three or four people for whom the wife is paying at an hourly rate (of somewhere between £150 to £250 perhaps) to serve the order!
But what happens if they arrive at the husband’s premises in say Chelmsford and discover he has nipped into London for a business meeting and will only be back in 3 hours and that there is no employee who has authority to allow access? Costs would be accruing of the professionals at an hourly rate whilst waiting for the husband’s return! The husband may not return until some 3 hours later (if at all). An employee could telephone his boss to tell him that solicitors are there with a court order to search the premises for financial documents. Before the husband returns to the office, he could return home to the shed where he has stashed all of his financial documentation relating to undisclosed offshore accounts or other accounts/assets and burn all evidence (or give them to a friend/relative) to ensure the wife does not discover them if she, for example, next managed to obtain an order to search the husband’s locked shed.
Upon the husband’s eventual return, the supervising solicitor would have a duty to explain to him in legal terms (which could take around, for example, 1 hour due to the fact the husband is being rather slow that day) what is happening before the search can begin. The supervising solicitor must explain to the husband that he has a right to legal advice. The husband could also delay the search beginning for 2 hours whilst he (overseen by the supervising solicitor) considers documentation to identify which he claims are privileged and should not be revealed in the search. He could also delay the search until his solicitor arrives.
After all the solicitors and experts having attended, therefore, at 9.30am, the husband could, after returning to the office, delay the search beginning until 3.30pm once he has considered documentation and his solicitor has attended and the matter has been explained to all parties.
What happens if the husband suddenly says he cannot find keys to his filing cabinets? Or that documentation is in fact at another business premises across town (when in fact the documentation could be in his bottom drawer at the marital home locked away to avoid the wife getting access)?
If the husband’s computer needs to be searched, this may not be allowed unless the wife or legal representatives have sufficient computer expertise to ensure they do not cause any damage to the husband’s systems. A further 5 hours could be lost in searching a computer for information with the husband arguing there are no relevant documents on there as far as he can remember and if there are, he certainly does not know what file they would be located in!
Further difficulties could arise if upon conclusion of the search at the husband’s premises (with no relevant documents or evidence have been found to support the wife’s claims that the husband was trying to hide or conceal evidence), one of the husband’s very important clients with whom he has a contract worth £2million annually attends at the premises. If the husband’s client, alarmed at what is happening, withdraws his contract (for perhaps reasons of confidentiality or a lack of confidence in the husband) and as a result of the search the husband suffers losses, he could pursue the wife for damages.
As part of the application for the search order, the wife may have had to give an undertaking (legal promise) to the Court that if as a result of her application for a search order no real evidence was found to substantiate her claim and loss was caused to the husband as a result of the search order, she could be liable to pay the husband damages if he pursues an application in the High Court for damages for loss of business.
The wife could therefore find herself with legal costs incurred as a result of the search so far for £25,000+, no real evidence having been obtained to substantiate her claim (the husband having successful stored such documents at a location unknown to the wife away from his business premises) and substantial damages to be paid to the husband for his loss of business.
All in all, it seems that unless someone has a strong idea of what assets their husband or wife are hiding and where such documents are being kept and these assets are worth a substantial amount justifying legal costs of anything from £25,000 upwards, then cases where I would advise a search order be applied are extremely limited. Let’s hope the decision in Imerman is soon reversed to allow sensible, controlled self-help remedies to return to avoid dishonest spouses getting away with concealing their true worth!