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The Consequences of Illicitly Obtaining Evidence During a Divorce

When two parties are going through financial proceedings during a divorce, it can be frustrating when one party knows the other is being dishonest. It is not unusual for an ex-spouse to deny the value of their assets, or to dissipate money somewhere else in the hopes that they can benefit from it after financial proceedings are finalised.

For a spouse on the receiving end of this avoidance, it is tempting to try and obtain documentary evidence of the wealth that they know their ex-spouse is hiding away somewhere. If the parties still interact with each other regularly, there can be opportunities of an unlocked mobile left in the living room, or post discarded open on the kitchen table.

There is a landmark case on this type of activity, known as Imerman v Technguiz and others; Imerman v Imerman. Within that case, it was confirmed that the Court cannot condone “the illegality of self-help consisting of breach of confidence because it is feared that the other side will itself behave unlawfully and conceal that which should be disclosed”. The unlawfully obtained materials must be returned, it is the recipient’s duty to make any relevant disclosure arising from them, and the owner of the documents can challenge the documents but only based on evidence confined to their memory of the material’s contents.

Applying for a Search Order is the best way forward

A spouse whose confidential information has been taken is entitled to seek relief such as an injunction to prevent any further examination or use of the information taken illegally. They can also seek an order for the return or destruction of the documents. If there is concern that a party is failing to disclose their assets, the other party can apply for a Search Order, and the court looks unkindly on parties who fail to give full and frank disclosure.
A new case which applied the steps in Imerman was decided on 22 May 2015, Arbili v Arbili, which was an appeal judgment arising out of financial remedy proceedings.

The husband appealed against a financial remedy award on the basis of alleged material non-disclosure by the wife. By way of background, the wife’s parents owned a house in France and the Court decided the wife did not have an interest in it. At the time, it was assumed by the Court that her parents would continue to reside in the property. The husband later revealed that he had paid someone to access his wife’s email account, and discovered that his wife’s parents were selling the house and that his wife would benefit in some way. He requested that this re-open the proceedings in an informal request to the Judge by way of email. The Judge dismissed this request, and said that due to the manner in which the material was obtained, and the husband’s persistent failure to disclose how he obtained the material, together with the wife’s subsequent disclosure, the matter should be stopped from proceeding any further. He invited the husband to make a formal application, but none was forthcoming.

Arbili is useful case law as it shows how highly critical the Court of Appeal was on the husband regarding his persistent failure to confess that he hacked his wife’s emails, and his failure to file any evidence in support of his application to re-open proceedings. If the husband in this case had been open about obtaining the documents, and revealed that his knowledge derived from illegally obtained documents, then the court may have considered his application.

The reality is, if you think your ex-partner is hiding documentation from you, don’t try to find hidden documents illegally. It is better to apply for a Search Order to ensure that everything you are doing is legal. If you do come into possession of documents belonging to your ex-partner and realise that they are useful for your case, then it is important that you send them to your ex-partner’s solicitors immediately, and if they refuse to disclose them publicly then you can make an application to the Court for them to be considered. As we have now learned in Arbili, you must be open and frank with the Court about how you obtained the documents when making an application if it is to be at all successful.

Watson Thomas Solicitors are experts in family law and provide legal guidance and representation during Divorce. If you would like to discuss your current circumstances with one of our legal team, we can offer a FREE initial consultation. Please call 01252 622422 or visit www.watson-thomas.co.uk for further information.