Some of the content presented on our website has been generated with the assistance of Artificial Intelligence (AI). We ensure that all AI-generated content meets our high standards for accuracy and relevance.
The term ‘self-help’ in the context of divorce and financial remedy proceedings was brought to the forefront in a landmark case eight years ago, but still remains somewhat of an issue, even today. It refers to parties to the divorce process helping themselves to documents or digitally stored information about their husband or wife’s financial circumstances, in the hope that this might help them when it comes to dealing with how the assets of their marriage should be divided.
History of Self-Help in Divorce Cases
Speak to any family lawyer and they will tell you that at some point in their career, they have been provided with instances of ‘self-help‘ a shopping bag full of documents that do not belong to their client but to the person that will, in the not-too-distant future, be their ex-spouse. Sometimes, these might have been documents just lying around the house for anyone to read. Sometimes, however, those documents are not those which a separated spouse may have had any wish to share. They may be documents kept privately in the study used only by the businessman husband, in a locked draw or, in the digital age, password protected or even encrypted on a personal laptop; documents considered to be entirely confidential and not for the consumption of others, even a spouse.
The first piece of advice a family lawyer will give their client who is encountering separation is that, in order to provide them with comprehensive advice as to what they are entitled to, we need to exchange full and frank financial disclose with their husband or wife.
For nearly 20 years, it was established practice to go so far as to advise your client that they were perfectly at liberty to look for, copy and provide to their solicitors, documents that did not belong to them but that might have been of assistance in establishing an accurate picture of their spouses financial circumstances, so long as the originals were returned promptly.
Self-Help Cases
In the case of Hildebrand v Hildebrand, reported in 1992, a husband had obtained and copied documents in his wife’s personal box file and then requested information he was already aware of, as a result from his wife in financial remedy proceedings. Although the court did refuse to order that the wife had to provide this information, the husband was not penalised for it and somehow, the ‘Hildebrand’ rules were born, endorsing the practice of self-help.
In Marco Pierre White’s divorce in 2008/2009, the practice of obtaining and copying documents was said to be acceptable, so long as no force was used in obtaining the documents, they were not intercepted or retained and did not involve the removal of any hard disc recording information electronically. The court said ‘the evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overreaching duty on the parties to give full and frank disclosure’. However, chinks in the armour of the Hildebrand rules were starting to appear and Mr White, although not successful in his attempts to sue his wife’s solicitors, did elicit an apology from them.
Only a year after Marco Pierre White’s divorce, the law of ‘self-help’ was changed by the Court of Appeal completely, leaving divorce lawyers having to quickly adapt and reject what had been the long-standing advice they had given to their clients.
Vivian Imerman was incredibly wealthy and the former CEO of the tinned fruit company, Del Monte. He married Lisa Tchenguiz in 2001 and they separated in 2008. At the time that the couple separated, Mr Imerman shared an office with his brother in laws, two wealthy property investors. One day the brothers locked Mr Imerman out of the office and downloaded 250,000 pages of documents (Mr Imerman’s said that it was nearer 2.5 million). The brothers presented them to their sister, Ms Tchenguiz, who duly provided them to her lawyer. She sought to rely on them in financial remedy proceedings relating to the couple’s divorce, even before the court had ordered that both of them should provide their financial disclosure.
Of course, Mr Imerman was not happy and applied to the court to prevent his wife from being able to admit the documents into the proceedings. The case made its way through the courts at significant cost to both parties and ultimately, the Court of Appeal decided that Ms Tchenguiz should return all of the documents and all copies to Mr Imerman. She was told that she could rely on her recollection of those documents in raising questions of Mr Imerman’s financial disclosure once he had provided it.
What is the moral of this tale?
First, the law is clear that any spouse’s duty to disclose their assets only arises when they are required to file their Form E (a financial statement setting out full details of their financial circumstances in financial remedy proceedings) with the court. It is not enough to assume that they are not going to be honest or that they will try and conceal assets before they are given the opportunity to disclose. Second, to help yourself to documents or information that is kept private and confidential to your spouse could result in costly injunction proceedings preventing you from using that information and, if your solicitor looks at it, it may well be that they are no longer permitted to act for you. Additionally, you may find yourself subject to civil or even criminal sanctions if you do.
What should you do instead?
Other remedies are available: freezing orders can prevent the dissipation of assets and Anton Piller or search orders will allow spouses to enter their estranged spouse’s premises in order to obtain essential evidence. These are, however, costly courses of action and should only be used when there is clear evidence, or you may end up paying for not just your legal representation in respect of an application but the legal representation of your husband or wife as well.
The court has wide powers, and the discretion or draw what are called “adverse inferences” if they suspect that a party to a broken down marriage is dishonest about their finances and final financial orders can be set aside if it transpires, after the divorce process has concluded, if assets have been concealed.
The best course of action is to seek advice from a solicitor as soon as possible about any concerns you have.
How Nelsons Can Help
Emma Davies is a specialist Family Law Solicitor at Nelsons. If you need advice on divorce or any other family related matter, please contact Emma and she will be happy to discuss your circumstances in more detail and give you more information about the services that Nelsons family law solicitors can provide.
Emma can be contacted on 0800 024 1976 or contact us via the online form.