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Don’t Help Yourself

Suzy Hamshaw - Divorce Specialist, Family Law Expert and Financial Claims on Divorce

Suzy Hamshaw

Suzy Hamshaw, a family law specialist with solicitors, Charles Lucas & Marshall says divorcing spouses need to think twice about accessing confidential financial information – even if they are sure partner is not being totally honest.

Reaching a financial settlement is one of the most challenging aspects of a divorce. The first step is financial disclosure. Each party has a duty to provide ‘full, frank and clear disclosure’ of all their ‘financial and other relevant circumstances’ so that they each have sufficient knowledge to make an informed decision.

Sadly the breakdown of a relationship is often accompanied by a breakdown in trust which leads to a concern that their spouse will conceal or move assets to prevent them being shared.

Until a few years ago, the accepted response was for a spouse to take steps themselves to ascertain the assets of their spouse – an exercise termed ‘self-help’. This might involve helping themselves to their spouse’s documents. Generally speaking, provided the spouse obtained the documents without the use of force, disclosed them, returned them and kept only copies then normally they would be admissible as evidence.

Sadly following the decision in the case of Imerman in 2010 things are very different now and self-help has effectively been outlawed. The court decided that the right of confidentiality exists between spouses to the same extent as it does between any people and they are not entitled to access their spouse’s confidential documents. If they do they will probably be stopped from using that material as evidence and might also have to pay damages.

The decision has not found favour and has been branded a ‘cheat’s charter’ by removing a useful tool in ensuring financial disclosure. The only way now to obtain documentation legally is through the court but this is expensive – meaning for the vast majority of spouses this remedy is not easily available.

There is no definitive list of what is confidential and there are grey areas. Bank statements kept secretly or password protected computers, to which the other spouse does not have routine access, will be confidential. A bank statement left lying around in the home, joint accounts, or information on a family computer to which both spouses have free access may lose their confidential character.

The general guidance is be aware of the duty of confidence; being married does not give automatic entitlement to see information belonging to the other. Don’t access your spouse’s computer without their permission. Finally, do not attempt to hand the information over to your solicitor. We are not allowed to read it, and if we do, we may not be able to act for you anymore.

Any spouse considering taking a look through the other’s confidential information should think very carefully about the consequences of taking that action. If you have real concerns about assets or information being hidden, speak to a lawyer about the options you have for making applications to court to preserve assets or information.

For further information contact Suzy Hamshaw on 01635 521212 or suzy.hamshaw@clmlaw.co.uk

 

Written by Suzy Hamshaw

December 9th, 2014 at 11:50 am