A right to privacy or a cheat's charter

The Court of Appeal's decision in Imerman v Tchenguiz has fundamentally changed the landscape for matrimonial finance cases.

Prior to the judgment, divorcing spouses were permitted a certain amount of leeway to help themselves when it came to gathering information about the family's finances. Put simply, rummaging through the marital home in order to find, copy and share documents detailing the other's assets was acceptable. This was particularly helpful where there was a suspicion that one spouse was hiding assets or concealing the true extent of their wealth.

The Imerman judgment has brought an abrupt end to this practice. Self-help is no longer any help.

Imerman confirms that if one spouse secretly copies documents or data belonging to the other they will have breached confidence (and perhaps committed criminal offences as well).

Now the only lawful way to obtain evidence of non-disclosure is to seek and carry out a Search Order. Search Orders are, in common parlance, dawn raids which, until now, had been mainly the preserve of corporate disputes and commercial fraud.

To obtain a Search Order the applicant spouse must first obtain sufficient evidence to demonstrate that the other has either hidden assets or intends to destroy relevant documentary or data evidence.

So, faced with a non-disclosing spouse and no longer able to use self help documents, spouses in this situation must now turn to more sophisticated methods of enquiry that can produce the intelligence and evidence necessary for a successful application for a Search Order.

Of course, the possibility that the marital home will now be the object of a dawn raid is not a pleasant one. Add to this the potential for calamity as solicitors across the country enter unfamiliar territory, with neighbours twitching at their curtains, and a difficult situation becomes much worse. The potential for reputational damage must not be underestimated.

Co-ordinating forensic, legal and IT expertise will require a specific skill set new to many law firms. This is not the murky world of corporate espionage: this is people's lives.

At Mishcon de Reya we have the experience needed across our family, fraud and reputation protection departments to handle these complex and distressing issues. We are already equipped to ensure that people at their most vulnerable are given sound, professional advice and the appropriate outcome achieved.
 

Contact

Family
Sandra Davis
+44 207 440 7014
sandra.davis@mishcon.com

Fraud
Kasra Nouroozi
+44 207 440 7032
kasra.nouroozi@mishcon.com

Reputation Protection
Ramona Mehta
+44 207 440 7294
ramona.mehta@mishcon.com