Key questions on divorce and separation—part 2: do we have to provide full financial disclosure?

When seeking advice from a solicitor in respect of your divorce and associated financial matters, one of the first things that they are likely to inform you of is your duty to provide full and frank financial disclosure. This is an ongoing duty and one that applies to both you and your spouse. But what can be done if you don’t believe that your spouse is being open and honest about their finances, hiding or dissipating assets to put them out of reach?

The principles of 'self-help'

If you become suspicious that your spouse is concealing assets or otherwise not complying with their duty of disclosure, it may be tempting to take matters into your own hands and undertake your own investigations. Helping yourself to financial information / documentation belonging to your spouse is known as ‘self-help’ and there are specific rules governing how this is to be treated within financial remedy proceedings; you should therefore think carefully before opening a letter that isn’t addressed to you or accessing your spouse’s laptop.  

The principles of self-help were first explored in the case of Hildebrand v Hildebrand [1992]. In this case, the husband obtained and copied confidential financial documents belonging to his wife. He then asked the wife questions about the information contained within the documents. Although the court did not oblige the wife to respond to these questions, the husband was permitted to rely on the information and documentation he had obtained improperly.

Hildebrand established the principle that, so long as no force was used to obtain, intercept or retain the documents, one party could take and photocopy documents belonging to the other. The documents did, however, then have to be returned to their rightful owner promptly. 

The ruling in Hildebrand inadvertently encouraged self-help, resulting in many spouses covertly obtaining information and documentation belonging to the other. Significantly, it also meant that documentation and information wrongfully obtained could be submitted as evidence within the course of the financial remedy proceedings.

The law surrounding self-help has since been considered in a number of cases, the most noteworthy being Tchanguiz v Imerman: Imerman v Imerman [2010]. In this case, there was a concern that the husband would attempt to hide assets, and so the wife’s brothers accessed a computer server in the office they shared with him, downloaded and copied a number of confidential documents, and delivered them up to the wife’s solicitor.

Prohibition on sharing confidential documents with third parties

Imerman was a notable move away from Hildebrand as it established the principle that spouses are not entitled to examine, retain, copy or provide to third parties confidential documents belonging to the other. Doing so constitutes a breach of confidence and in some instances may even result in criminal sanctions such as a fine or imprisonment. 

Duty to return documents

Following the ruling in Imerman, in the event that you do find yourself in possession of confidential documents belonging to your spouse, these must be returned to them as soon as possible. Once they have received the documents, they will, in turn, have to comply with their ongoing duty to provide full and frank disclosure. Although it is possible to rely on what you recall from having seen the documents, the court can (and often will) refuse to admit evidence obtained in this way.

You should inform your solicitor as soon as possible if you have in your possession any confidential documentation (letters, emails, bank statements etc.) belonging to your spouse. They will not, however, be able to review these documents as doing so may lead to them breaching their professional obligations.

Freezing injunctions

If you do not think that your spouse has given, or intends to give, full and frank disclosure of their finances then there are a number of legal remedies available. These include, for example, making an application for a freezing injunction to prevent your spouse from disposing of assets or obtaining a court order for a third party (such as a trustee) to produce relevant documents and / or information. You should therefore raise your concerns with your solicitor and they will be able to advise you as to the appropriate course of action.

Katie O'Kelly is an associate in the family and children team, advising on a wide range of family law matters including divorce and separation, financial settlements, and cohabitation disputes.