Husbands and wives are entitled to privacy against each other. There is a risk of both civil and criminal sanctions for both you and your legal representatives in taking or using confidential documents. The recent case of Tchenguiz v Imerman and Others [2010] EWHC 64 (Fam) means matrimonial lawyers need to establish parameters within which ancillary relief cases can now be managed and confidential documents dealt with.
Confidential Documents
These fall into the following categories:
- Documents given to you by your partner during the relationship (there is an argument that your partner has waived confidentiality in relation to these documents)
- Documents accessible to you given the nature of the relationship (confidentiality may have been waived depending on the circumstances, e.g.: where were the documents located? What was the extent to which the information was shared between you and your partner? What is the nature of the information? Did you read the documents during the marriage with your partner's understanding? How did you and your partner manage your finances and filing system?)
- Documents personal to your partner which were not openly accessible to you. If you access their personal space (e.g. a private office) and obtain documents it is likely these documents will retain their confidential nature.
Documents found prior to exchange of financial disclosure (Forms E) are differentiated from documents found after exchange of financial disclosure.
Documents Found Prior to Exchange of Forms E
Practitioners have to be extremely cautious when receiving from you documents belonging to your partner prior to exchange of Forms E. If you have documents belonging to your partner, please note the following:
- We will need to take full instructions from you as to the circumstances within which you came to hold the documents
- We will need to advise you of the possible implications of reading the documents (which may include an application by your partner for us to cease to act for you).
- We and you must not read the documents or take copies
- These documents cannot be retained. We will have to do one of the following:
(i) Send the documents to your partner's solicitors in an envelope and ask for a copy of the documents, for an opportunity to read the documents or for the documents to be considered by your partner's solicitors at the appropriate stage of disclosure with a request that they are held by your partner's solicitors prior to the exchange of Forms E.
(ii) If you are concerned about your partner concealing or dissipating assets (and have good grounds for this concern) or are fearful that your partner might do so in the future, an application could be made to the court to determine whether any of the documents should be subject to an inspection or a preservation order. The documents would need to be brought to court in a sealed envelope and an Affidavit will need to be prepared on your behalf by us setting out your specific concerns about the documents but we will not be able to look at them. Significant legal fees can be incurred in doing this.
(iii) If your partner has not instructed solicitors, then you have no option but to make your application to court under (ii) if you have real concerns.
(iv) If it appears that confidentiality (see page 1) has been waived then copies should be retained and the originals returned to your partner's solicitors saying that you have looked at the documents with us, as a view has been taken that confidentiality has been waived. It will then be up to your partner to make an application to the court in the event that he disputes the confidential nature of the documents. The risk is that we may have to come off the court record if the documents are subsequently deemed still to be confidential.
Documents Found Post Exchange of Forms E
- We will have to take full instructions from you as to the circumstances within which you came to hold the documents and again confidentiality may have been waived and this will affect how the documents are dealt with
- We will advise you of the possible implications of us reading the documents which include being taken off the court record
- We cannot read the documents or take copies unless it appears from what you are saying that the documents are evidence of your partner's unlawful conduct or intended unlawful conduct. In other words the Form E is incomplete (i.e. non disclosure or an attempt to defeat your claims). It is arguable that these documents can and should be relied upon in financial proceedings as such evidence should properly be before the court. In these circumstances, copies should be retained and originals sent to the other side notifying your partner's solicitors that you take the view that the documents have lost their confidential nature as they point to non-disclosure, and will therefore be relied upon
- If there is still a doubt as to whether the documents evidence unlawful conduct on the part of your partner, then the other options listed at (i) and (ii) above will still apply, namely sending them over unread or an application to the court.
- In light of your partner's disclosure we will ask you whether you consider that there has been any material non-disclosure
- Confidentiality of the relevant documents may be deemed to have been breached. The difficulty will be inadvertently reading irrelevant documents, that could still give rise to an application for us to come off the record by your partner.
If you are concerned at any stage that your partner may be taking steps to defeat your financial claims, either because you have overheard any conversations or because of threats, subject to us advising you that you appear to have a good arguable case, it is open for you to make emergency orders to the court for both a freezing injunction and an Anton Pillar order to inspect premises and seize relevant documents. It should however be noted that these are not straightforward applications and significant legal fees may be incurred in taking such steps.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
