Imerman v Imerman (click here for our case report in this regard) delivered last week changes the rules on what a divorcing spouse is allowed to do in terms of obtaining copies of documents held either on a computer or in paper form. Previously, the use of information relating to another person’s documents were governed upon divorce by the Hildebrand rules. This allowed a party to take and copy their spouse’s documents as long as a) they did not use force b) they took only copies and did not keep the originals and c) they disclosed not later than upon service of the first questionnaire prior to the financial dispute appointment in relation to ancillary relief proceedings what documents they had or earlier if they were asked. If, therefore, for example a wife decided she wanted to divorce her husband and expected he would not be honest and open about his financial position once he realised he was being divorced, she could obtain copies of documents, for example, from the bedside cabinet or an unlocked filing cabinet, or just left lying around. It was also generally felt, for example, a wife who could access a computer which was not password protected to obtain documentation and information on a husband’s finances, she could do so under these rules.
In the case of Imerman v Imerman, Mrs Imerman’s brothers obtained copies of various emails and documentation from the husband’s computer (although they owned or leased the server controlling his PC) and the husband, when discovering this, applied for and obtained an injunction preventing the further examination or use of this information and an order for the return of documentation, including any copies.
The Imerman case also went further and said that where a solicitor had been privy to information and documentation they should not have seen from a client’s spouse, the Court could order that the solicitor cease acting in the case.
The case also made it clear that in relation to the computer print-outs, offences or breaches may have been committed under the Computer Misuse Act 1990 and the Data Protection Act 1998. The Court also stressed that a civil action, including for damages, could be brought against a person who had, without permission, considered and copied confidential documentation or given copies to a third person. The Court said that confidence in principle exists between a husband and wife and that for a spouse to go hunting around for financial documentation could be actionable. The Court questioned that if a spouse had left documentation lying around, this could be classed as confidential as that spouse may be taken to have waived their right to confidentiality by themselves not keeping the documentation confidential.
In addition to the above circumstances, a spouse may also be guilty of a criminal offence in matrimional cases in the following circumstances:
1. Where a computer or spy software is installed onto a spouse’s computer or Blackberry (breach of Section 1 of the Computer Misuse Act 1989, punishable by a fine of £5,000);
2. Where post is steamed open and the contents copied (criminal offence under Section 84 of the Postal Services Act 2000, carrying a maximum 6 month prison sentence);
3. Where a spouse intentionally and without authority intercepts post (this carries a maximum 2 years’ imprisonment).
At this point in law, therefore, it appears that a spouse’s self help remedies of trying to ascertain what the true financial position of their other half is not an option. The only option a spouse has is to wait, cross their fingers and hope their other half will be open and honest about their financial position or alternatively hope that their other half may leave documents lying around on the kitchen table which they can look at and try to memorise account numbers, banks and transaction details!
Unfortunately, the Justices who presided over the Imerman case in the Court of Appeal were not family judges or else they may have been more sympathetic towards a spouse having had experience of cases where one party attempts to conceal, mislead or dispose of assets to defeat their spouse’s matrimonial claims upon such assets. Although there are orders a spouse can attempt to force a person to provide proper disclosure, these are usually very costly and provide risks of their own and by the time a party has found out the other party is attempting to conceal assets, they are often in any event already hidden or out of reach.
Further blog to follow on search orders