Is my Husband entitled to any confidentiality when it comes to financial matters?

Can you use self-help to investigate your husband’s/wife’s finances before, or indeed during, divorce? 

Until recently the answer to that was probably yes. A wife would often trawl through her husband’s financial documents (whilst he was out engaging in what she no doubt described as ‘adulterous activity’) and then deposit a bundle with her matrimonial solicitor to ‘assist’ with disclosure. Invariably the solicitor would advise that the documents must be sent back to the husband, but not before they had taken copies to assist with her case! With hindsight this does seem a little unfair but, on the other hand, as the husband will be under a duty to disclose all of his assets, what is the loss? Unless of course he was not intending to disclose them in the first place!  

What about the position from the husband’s point of view? Having been on the receiving end of this information and now knowing that their client has these assets, his solicitors will almost certainly be duty bound to bring them to the attention of the court, or decline to continue to act if instructed to do otherwise and hence mislead the court.   

Following the ruling by the Court of Appeal this month in the case of Imerman, that seems set to change. In this case, the Court of Appeal effectively said that if a wife (or indeed a husband, if he were so minded) took it upon herself to obtain documentation which was confidential in nature, then the court would not protect her. Contrary to what many may think, there is still a requirement for confidentiality between husband and wife. I should point out that documents left lying around the house may result in the husband having lost his right to them remaining confidential. However, a wife taking this step may well be ordered to hand back those documents without retaining copies and may be prevented from using that information, whether or not later disclosed by the husband, within the divorce process. It is even possible that having handed them over to her solicitor, she may be prevented from using that solicitor.      

The risk therefore is significant. Not only might the wife have prejudiced her position by preventing her solicitor from relying on the information, she could even be forced to start again with a different solicitor. This would be unfortunate when a well-thought-out and well-drafted questionnaire could have produced the same result.   

What is the answer? Seek advice before taking such a step. That must now be the only way to go. There are other ways of approaching non-disclosure and attempts to dissipate assets (for example, making an application for a freezing injunction where there is a genuine risk that the husband is perhaps transferring assets out of the jurisdiction.) Maybe this ruling will add to the number of applications for such injunctions where wives feel that they have no alternative. Watch this space…