My spouse is going to hide assets in our divorce – what can I do?
The latest legal position on “self help” in divorce
Vivien Imerman had told his wife, Mrs Elizabeth Tchenguiz Imerman, and her two brothers they would “never be able to find my money” because it was “well hidden”. Elizabeth and Vivien were facing divorce proceedings. Vivien shared office space with Elizabeth’s brothers. Her two brothers accessed materials on Vivien’s work computer, printing off somewhere between 250,000 and 2.5 million pages and arranged for material which they believed to be relevant to be passed to Elizabeth’s matrimonial solicitors. Vivien argued that this was unlawful and the papers should be returned.
The Court of Appeal considered Elizabeth and her brother’s actions on 29 July 2010. Elizabeth and her brothers relied on the so called “Hildebrand” rules. These suggested that you could take and copy your spouses confidential paperwork so long as you do not use force to obtain them, you keep copies (not the originals) and tell your spouse that you have them within the court proceedings or earlier if asked. Elizabeth argued that she had to help herself to the papers to ensure that Vivien did not hide any of his assets from the divorce courts, preventing her from obtaining a fair financial settlement. The Court of Appeal disagreed and ordered that the Hildebrand rules could not be relied on.
The Court of Appeal said that the need to ensure one party does not conceal his assets in a divorce does not entitle their spouse, or anyone else, to breach their right to protect the confidentiality of their documents and information. To take or copy someone’s confidential papers or files on their computer might be a criminal act. If someone has their spouses confidential documents, whether they are originals or copies, the spouse is entitled to an injunction preventing further examination or use of the information contained in them, an order for the documents to be returned to the spouse and an order for the destruction or return of any copies of them. The court gave Vivien Imerman such an injunction to protect his position. The papers were to be given to Vivien’s solicitors for them to advise him of his obligation to give full details of his financial position within the divorce proceedings.
But what are "confidential documents”?
Papers are confidential if you know your spouse reasonably expects them to be private. They will include bank statements, annual statements from investments, policy documents or letters addressed solely to your spouse.
However, the court clarified that “if your spouse leaves his documents such as his bank statement lying around open in the matrimonial home, in the kitchen, living room or marital bedroom, it may well lose its confidential character as against his wife. The court may have to consider the nature of the relationship and the way the parties lived and conducted their personal and business affairs. Thus, if the parties each had their own study, it would be less likely that the wife could copy the statement without infringing the husband’s confidence if it had been left by him in his study rather than in the marital bedroom …”
What can someone in Elizabeth Tchenguiz Imerman’s position do?
The court recognised that the lack of candour on the part of spouses determined to conceal the true value of their assets from the court within divorce proceedings is a very real problem. If you believe your spouse is going to conceal or dispose of assets, you can approach the court for an order:
- enabling your representatives to enter your spouses premises in order to search for, inspect and remove your spouses documents;
- preventing your spouse from disposing of or dealing with his assets; or
- in very exceptional circumstances, preventing your spouse from leaving England if you believe he is going to hide assets abroad.
Your recollection of the contents of your spouse's confidential documents can be described to the court to support your application for such court orders.
If you have copies or originals of confidential papers belonging to your spouse which have been obtained unlawfully or clandestinely you have to tell your spouse promptly if asked or within the divorce proceedings. The court might make orders preventing you from using the papers and might go so far as preventing you from continuing to use your current solicitors if they have copies of the papers. Equally, the court might refuse to order your spouse to produce documents which you have unlawfully obtained copies of. The court might allow you to explain what is in those documents to assist them in deciding whether your spouse should produce copies.
The court will have expected you to have returned the documents or copies to your spouse before speaking to the judge about them. The court will be considering your recollection of their contents to decide whether your spouse has hidden assets. If they believe assets have been hidden, they can draw adverse inferences, deciding on the likely level of hidden assets towards the top end of the amount suggested.
The court could decide that confidential papers can be used, but this seems unlikely. When deciding whether or not to consider confidential papers, the divorce courts should be “guided by what necessary for disposing fairly of the application for [financial relief on divorce] or for saving costs and will take into account the importance of the evidence, the conduct of the parties, and any other relevant factors … Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice”.
Mr and Mrs Imerman’s case makes it very clear that helping yourself to your spouses confidential papers is illegal and can backfire. Your best course of action is to apply to the court for an order for your spouse to provide the documents you have seen and for an order that your representative can search your spouses premises for the documents. If you do see papers belonging to your spouse, you must consider whether they are confidential before taking the originals or copies of them.
