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Divorce: why not put your cards on the table?

View profile for Philip Hoddell
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I have previously blogged about how honesty is the best policy in divorce proceedings, but when and what you can disclose is still a much-misunderstood subject. The High Court has recently issued some further guidance which might help.

Divorce lawyers have long been concerned about the decision in the Tchenguiz & Ors vs Imerman case. This was a case where the wholesale hacking of commercially sensitive documents belonging to a spouse and their business partners was roundly criticised by the Court of Appeal. The so-called Imerman Rules have been a source of endless debate ever since. Broadly summarised, if the documents are ‘lying around’ you can help yourself to copies of them, but if they are locked away (either physically or electronically), then you cannot.

Mrs Thum found some relevant financial documents on a flash drive in the parties’ joint safety deposit box in Zurich. She said the drive was in an envelope and the password was written on the front so, therefore, it was the equivalent of documents just ‘lying around’, so available to her.

Her husband disagreed. He denied her version of events and claimed that a hacker must have been employed to access the data.

Very sensibly, Mrs Thum agreed to hand the flash drive over to her husband’s solicitors under the usual conditions – that any admissible and relevant documents should be immediately disclosed back by him to her. Mr Thum ignored the rules, ignored an order from the court to disclose the documents, and then failed to turn up at court.

In the absence of the husband, the judge had little difficulty in ruling against him. He indicated that he was satisfied the conduct of Mr Thum was “mounted in bad faith and consistent with his attitude and conduct from the very dawn of this case”. The lawyers were ordered to disclose the documents regardless of Mr Thum’s objection.

In this case, Mr Thum may have had a good argument but he almost guaranteed it would fail by not co-operating with the court. The argument about whether the documents had been effectively just ‘lying around’ therefore went against him. The judge confirmed that, in those circumstances, the documents themselves were fair game.

Obviously from a court’s perspective, unless it has all of the relevant information and documentation in front of it, a judge is not going to be able to necessarily make a fair order. Sometimes a lot of heat is generated by so called ‘Imerman arguments’, but on many occasions, the more that someone protests that documents are not going to be relevant, the more the court wants to actually see them!

If you would like more advice or information regarding this issue, our divorce and separation lawyers offer a free, no obligation 15 minute chat. I am based in our Colchester office and can be contacted on 01206 217320 or philip.hoddell@birkettlong.co.uk.

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