When couples are divorcing, a solicitor will often ask for various financial documents from their client. This is because divorcing parties have a legal duty to provide full and frank financial disclosure and this duty applies whether or not they are in formal court proceedings. It is a wide duty and, as such, it is not uncommon for clients to provide boxes of documents or even filing cabinet drawers full of papers to their solicitor. The difficulty comes if those boxes/drawers include documents belonging to the client’s spouse.
In the past, if a client suspected that their spouse was not going to give full and frank financial disclosure, it was not unusual for them to help themselves to documents belonging to their spouse. It was common practice that the solicitors would then disclose those documents and the client’s act of helping themselves did not usually carry any significant consequences.
A case called Tchenquiz and others v Imerman in 2010 clarified that the removal and retention of confidential material belonging to another person in the circumstances of a divorce was not to be condoned by the court. The court was clear that spouses are entitled to confidentiality and privacy and that it is a breach of privacy to examine, retain or copy confidential material belonging to another person.
What is or is not a confidential document is not always straightforward, as confidentiality can be waived in certain circumstances. For example, if a spouse leaves a confidential document on the kitchen table. Also, the case of Imerman does not mean that confidential documents, whether or not obtained lawfully, cannot be used in court proceedings relating to the divorce. However, in doing so, the person who has unlawfully obtained the documents could risk civil and/or criminal sanctions.
The potential consequences mean that clients need to take extra care when they are collating their financial documents. If a client believes they have access to confidential documents belonging to their spouse, they should speak with their solicitor before taking action to ascertain what they can and cannot do in relation to those documents. It is always advisable for clients to have that discussion in advance of delivering any such documents to their solicitor.
We can help explain the complexities of this and how best to proceed so as to avoid acting unlawfully to an advisor and/or their client. Please do not hesitate to contact us.
Victoria Mayhew
Associate
Family Law
