Family lawyers are familiar with their client turning up at the office with financial documents they have discovered. Sometimes these documents have been found whilst rummaging in rubbish bins or more frequently nowadays, by downloading information from their partner?s e-mail, internet banking or Facebook accounts. This information may be important, but may also heighten the tensions in a matrimonial case, particularly if the other partner feels that his or her privacy has been invaded.
But can information obtained by the ?self help? route be used in the divorce court?
Back in 1990 in a case called Hildebrand v Hildebrand, set the precedent for ?self help?. The rule appeared to be that spouses could use documents belonging to the other spouse; whether they were confidential or not, provided that no criminal act was undertaken. What became known as the Hildebrand rules became accepted by family judges both in the UK and in Jersey.
A judgment by the English Court of Appeal last year changed all of this in a case called Imerman. It has now been held by the court that helping yourself to documents belonging to your partner and using them in the divorce proceedings is not permissible. In this case the wife was banned from using information taken by her brothers from her husband?s computer without his permission. This judgment has effectively ended any detective work by estranged partners for evidence of hidden assets and has been branded a ?cheat?s charter? by many family lawyers.
?Cheat?s charter? and family law in Jersey.
The decision in Imerman has not yet been tested in Jersey, but it is probable that the Royal Court would follow its logic. Given this, family lawyers will need to think long and hard about documents given to them by their clients. Each case will be different and not all documents found in the home will automatically breach confidentiality, for instance bank statements that one spouse leaves lying around in the kitchen will be treated differently to documents kept in the other spouse?s locked study.
The overriding lesson that comes from the Imerman decision is that the divorcing spouse and their lawyers now need to be very careful about how confidential information belonging to the other spouse is used. In particular, a red light should come on where it appears that such information is being taken from computer records that are confidential. There is also a risk that both the client and the lawyer could breach the Data Protection Law as well as breaching confidentiality.
Family lawyers are concerned about the implications of the Imerman decision. Many regard it as a throwback to the Victorian age but for now a divorcing spouse needs to be aware of the risks if they dive into the bins, open their partner?s mail, e-mail or search their social media accounts.