Divorcing couples will no longer be able to use illegally obtained evidence of their former spouses assets, following a controversial Court of Appeal decision, which has already been branded a cheats charter, according to Judith Middleton, a family law specialist at Latimer Hinks solicitors.
The ruling follows a divorce case surrounding the multi-millionaire owner of Del Monte foods and overturns the longstanding practice in the Family Courts, known as the Hildebrand Rules, that a spouse could obtain and use documents belonging to the other spouse without their consent, provided no force was used and that possession was disclosed within certain time limits.
But following the latest case, Imerman v Tchenguiz, the Court of Appeal has stated decisively that obtaining information in this way consists of a breach of confidence and is therefore illegal. They concluded that the Hildebrand Rules were bad law and in future any such information cannot be accepted by the courts.
Lisa Tchenguiz was the Iranian-born wife of South African millionaire Vivian Imerman, who made a fortune as the owner of Del Monte foods and the Whyte and Mackay whiskey brand.
When their marriage broke down, Ms Tchenguizs brothers, with whom Mr Imerman shared offices and an IT system, barred him from the office building and downloaded a large number of his computer files relating to finances and assets. They handed these files to their solicitor, who in turn handed them to Ms Tchenguizs solicitors.
Mr Imerman went to court to ask for an order that the information contained in the files should not be used in the divorce proceedings, because it had been obtained in breach of confidence.
The judges in the Court of Appeal recognised that "lack of candour on the part of spouses determined to conceal the true value of their assets from the courts was a very real problem but said that the remedy was not in illegal self help, but through the powers of the court to grant orders for search, seizure, freezing, coupled with the fact that the court would take a severe view where a spouse would not give full and frank disclosure. But this approach has been condemned by divorce specialists.
Judith Middleton, a Partner at Latimer Hinks said: "This judgment has been very badly received by many family law practitioners, and has already been described as a charter for cheats. The Court of Appeal admits that dishonesty is a real problem in the family courts, yet it is suggesting remedies that have evolved in the commercial courts and would be impossibly expensive for ordinary people.
"Whilst the high value cases will be able to afford to pursue disclosure through the courts, it is likely to make it much harder for people in everyday divorce cases to get a fair result. These everyday cases are not about ex-spouses seeking millions in settlement, theyre often about a single parent trying to secure support for their children from an unwilling ex-partner.