Henry Brookman highlights the pitfalls associated with gathering evidence prior to divorce. Published online in Here Is The City.

Divorce is an emotionally charged and often very sad time for both sides. In part, it is the divorce solicitor’s job to guide their client through the divorce process with a calm and astute head so that the outcome is as positive as it can be. Increasingly however, people are starting their divorce process with a more ‘business orientated’ viewpoint and are willing to fight as hard as they can to ensure their settlement represents what they feel they are due.

There are likely to be several reasons why this approach has become more common in recent years. To some extent this could be influenced by a tougher economic environment where people are especially keen to protect their assets. Additionally, as women have increased their earnings they have developed much greater awareness of their financial worth – the days of when a wife believed that the husband ‘deserved’ the larger share are past. Also, divorces and settlements gain much more publicity than they ever did, so press coverage and a simple ‘Google search’ can help provide background information regarding settlements.

Gathering evidence for divorce – the impact of Tchenguiz & Ors v Imerman

Part of divorce involves gathering evidence. After all, financial assets that cannot be identified are very difficult to split. Bank statements, financial documents or paperwork relating to business ownership etc. are all valuable evidence when it comes to proving what is in the ‘pot’. But how do the Courts view evidence that has been ‘intercepted’ by a spouse?

The simple answer to the question is that the Courts will not look favourably on evidence which is considered to be stolen material. The recent very high profile case of Tchenguiz & Ors v Imerman proved this. Drinks magnate, Mr Imerman, was married to Lisa Tchenguiz Imerman. To gather evidence for the case, the wife’s brothers downloaded material from Mr Imerman’s computer to try and prove the value of his assets. The Tchenguiz brothers’ behaviour was considered so inappropriate by the Court of Appeal that the Judges created some hard new law to punish this type of behaviour in the future.

Now, the old self-help principle (known as the Hilderbrand principle) – whereby a spouse could obtain documents belonging to their partner by photocopying items, or printing emails etc. – is no longer useable. The Court ruled that a spouse (and their divorce solicitor) who secretly obtain documents or information may have no defence against an injunction or breach of confidentiality proceedings. The Court may not admit the improperly-obtained documents into evidence. Simply put, this means there is no longer the right to ‘self-help’.

How can evidence be gathered?

The issue with regard to gathering evidence is deciding whether the individual who gathers the information has some sort of implied right to see it. This is certainly open to interpretation. For example, if a spouse happens to view some emails that are left on their partner’s computer screen, do they have a right to read them? Or is it acceptable to read mobile phone messages when borrowing a spouse’s telephone?

Gathering as many facts about a couple’s finances is critical to a successful outcome in financial negotiations, but if that evidence is gathered in an inappropriate manner it may be worthless.

Therefore, before a husband or wife chooses to gather evidence in advance of them announcing their intentions to divorce, they would be wise to seek legal advice as to how that evidence should be appropriately gathered.

If you would like to know more about this issue please contact Brookman Solicitors for more information.

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