Many people are therefore concerned that their spouse will not provide full or truthful details of their financial circumstances when the division of their assets is discussed.
Divorcing couples are legally required to provide a full and accurate picture of all their financial details to each other so that there is a level playing field to start negotiations. However, many people are tempted to double-check their spouse's paperwork or computer records, without their spouse's knowledge, to see whether they are in fact painting the full picture.
The ethical questions and legal principles arising from such behaviour were initially considered in the 1992 case of Hildebrand v Hildebrand, in which a husband found and copied documents that were stored in his wife's personal box files. In the financial settlement proceedings that followed, he then requested information of which he was already aware from the wife.
The court refused to order the wife to provide the information, on the grounds that the husband's conduct was wrong and he already knew the answers. The judge went on to require the husband to provide all the documents to the wife's lawyers. This ruling gave rise to the 'Hildebrand rules'. These rules allowed people who were concerned about their former spouse's honesty to, in effect 'help themselves' to documents, so long as this did not involve the use of force or the interception of documents and so long as the original documents were returned.
However, all of this changed in 2010 with the case of Tchenquiz & Others v Imerman.
In Imerman, the wife’s brothers downloaded information from a computer being used by the husband in an office they all shared, because they suspected that the husband would try to conceal his assets ahead of his divorce. The information was printed and passed to the wife’s solicitors.
The husband subsequently asked for the files, and any copies to be returned to him. The Court of Appeal agreed, and ordered the files to be handed back to the husband’s solicitors. Further, the court stated that the wife should be prevented from using any of the information gained through reading them.
Imerman overturned the Hildebrand rules on the basis that such conduct by one party, which would otherwise be considered to be 'criminal or actionable' was not justifiable. However, those who disagreed with the court's decision called it a 'cheat’s charter'.
The decision in Imerman remains the current legal position. Nevertheless, there are other options for people who suspect that their former spouse is hiding information about their assets, which include making applications to the court.
In some cases, uncovering such information can be vital to ensuring a fair financial settlement is reached. However, the importance of getting hold of such information in the legally-approved way is clear from the cases of Hildrebrand and Imerman.