Kathryn McTaggart is a solicitor with national family law specialists Woolley & Co.
Until last month, spouses who discovered information showing their partner was ‘hiding’ money (and not giving the court a true picture of their assets to reach a fair financial settlement) could copy it and put it before the court to help their case. But in the Imerman case, the Court of Appeal decided that those in the weaker position are effectively on their own: their spouse’s privacy is essentially more important than ensuring a fair outcome.
It fair to say that family lawyers are, not to put too fine a point on it, absolutely staggered.
The facts in a nutshell
Mrs Imerman married the ‘Man from Del Monte’ who shared an office with her property tycoon brothers.
When things went ‘pear-shaped’, the brothers locked Mr Imerman out of the office and downloaded somewhere between 250,000 and 1.5 million documents from his computer.
They handed them to their sister’s family lawyers as they believed Mr Imerman had no intention of making full and frank disclosure.
Court of Appeal ruled that Mrs Imerman could not use this information even though she had nothing to do with obtaining it.
Effectively the Court of Appeal said that married couples are entitled to privacy from one another even in relation to what are, after all, matrimonial assets!
What does this mean for divorcing couples (& their lawyers)?
Say a husband and a wife, let’s call them Mr and Mrs Jones since we’re in Wales, have been married for 20 years and throughout that that time Mrs Jones has kept all her precious things and private papers at the back of her knicker drawer. If Mr Jones thinks that Mrs Jones is hiding anything he will know exactly where to look when things breakdown. So, if they decide to part and Mr Jones has a little snoop around before meeting his solicitor and finds £40,000 in secret bank accounts (shock horror!), can he hot foot to his esteemed adviser with copies, crying “Jackpot”?
The short is answer is no. The information wasn’t in the public domain it was in Mrs J’s very private knicker drawer. And she certainly didn’t give him (or his solicitor) permission to have a good root around in there!
The law as it stands indicates that both our jaded Mr Jones and his solicitor have committed a breach of Mrs Jones’ confidence and she could sue them both.
So already our straight down the line solicitor has bad news for Mr Jones. All he can advise Mr J is to:
- To remember and write down as much as he can
- Wait for his wife to make full financial disclosure
- Cross his fingers that Mrs J discloses the secret accounts
- Advise on the steps (with detailed costs estimates!) of what can be done if she does not
So what does the Court of Appeal want us to do then?
Answer: Seize, Squeeze and Freeze!
If the information isn’t disclosed as anticipated then Mr Jones’ solicitor must follow the law and apply for a ‘search and seize’ order which means Mr J must:
- Instruct an independent solicitor to oversee a raid on Mrs Jones’ knicker drawer and take away the bank statements (which are highly unlikely to still be there)
- Pay Mrs J’s legal costs if nothing is found in said knicker drawer
- Apply for a ‘freezing’ order if any statements miraculously are found so she can’t blow the money in the account on toy boys or round the world cruises
- Pay his own solicitor’s fees (which by this time will be at least equivalent to the funds in the secret accounts)
And if he can’t afford that?
Why it is a bonkers decision by privileged, out of touch, non family lawyers (in my humble opinion)
Self help is no longer an option. Even though married couples have a legal entitlement to share in ALL the matrimonial assets and there is a risk that one party will be seriously prejudiced if one person doesn’t disclose everything they should. How assets WILL be shared is a different question.
And the Court of Appeal didn’t really deal with one burning issue. If documents are in your bedroom, or on your kitchen table or on your family computer, does it matter if they are yours or your spouse’s?
To quote from the judgement:
“If a husband leaves 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, and the wife’s case would be weaker if the statement was kept in a drawer in his desk and weaker still if kept locked in his desk.”
Does that sound like a 21st century family home to you? Does a ‘husband’ get the benefit of this ‘Cheat’s Charter’ simply by designating a private study (preferably with lockable drawers)? And if we are living in this old fashioned world where spouses have private domains and compartmentalised lives, can we assume that those documents lying on the kitchen table are (naturally) the private property of the woman of the house…..!?
Kathryn specialises in divorce and separation, as well as related financial matters, and has a special interest in private children disputes, including applications by a parent to move with a child to another country. Kathryn is a collaborative lawyer and has worked as a mediator so her approach is always creative rather than adversarial. She is committed to acknowledging the trauma of separation whilst remaining constructive and forward looking.
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