Finders keepers, losers weepers

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19 November 2010

The recent Court of Appeal ruling in the high-profile case of Imerman v Tchenguiz means that divorcing and separating couples should exercise caution before searching for information about their spouse’s finances. It is no longer acceptable for one spouse to access and copy the other's private documents and this may, in certain circumstances, be deemed a breach of confidentiality and be considered a criminal offence.

A survey of divorce lawyers by Grant Thornton published in July suggests that there may be significant concealed assets or income in 10-30% of divorce cases. Previously, if there were suspicions that a spouse was not providing the complete picture about their financial situation, it was acceptable for the other spouse to take, copy and retain copies of confidential documents and send them to his or her solicitor provided that no force was used to obtain the documents.

A radical change

The case of Imerman signifies a radical change in what constitutes acceptable conduct; married couples are now no exception to the rule that each person has the right to privacy.  As a result great care should now be taken before a spouse (or indeed anyone acting on their behalf) considers looking for  documents belonging to their husband or wife. 

If the information is contained on a computer (shared or otherwise), even if that information is not password protected, if it is known that the other spouse would not freely consent to the information being copied or accessed, then it should not be copied.  For documents contained in an office or filing cabinet (again, shared or otherwise), only if it is known that the other spouse would consent to this information being copied is it acceptable to do so.  In both scenarios the only acceptable action is to take a "mental note" of the information to pass on to a solicitor.  

Imerman v Tchenguiz

In Imerman, a South African fruit juice tycoon Vivien Imerman shared offices and a computer server with his wife’s brothers.  As the marriage broke down, Mrs Imerman’s brothers feared that he might try to conceal some of his assets to avoid revealing the true extent of his finances. They copied 2.5 million pages of information belonging to Mr Imerman from the joint server and passed the data to their lawyers.

The Court of Appeal decided that in such cases the ends (revealing a spouse's attempts to conceal assets) did not justify the means and found that the brothers had acted unlawfully.  Importantly the court would not allow the information that was found to be used as evidence.

A family affair

The case also highlights the perils of accessing documents in a business environment.  Mr Imerman and Ms Tchenguiz's two brothers shared business interests, office space and computer facilities, but the accessing of the documents by her brothers was not permissible.  The rules regarding accessing another person's documents do not just apply to married couples.  The case is a reminder that when a person takes matters into their own hands they can face tough penalties; including potential criminal prosecution under the Computer Misuse Act 1990 or the Data Protection Act 1998.

Searching questions

For the majority of separating couples, information is exchanged openly and voluntarily.   However, if that does not happen, there are a number of remedies available.  This could be the exchange of sworn Financial Statements, or court orders for the production/disclosure of information, which can also require third parties (such as accountants or trustees) to bring documents to court. Taking the law into your own hands is now not a safe option: it is no longer a case of 'Finders Keepers, Losers Weepers'. 

For further information, please contact Sarah Woodsford on +44(0) 117 902 7743 or on sarah.woodsford@burges-salmon.com or Mary Gaskins on +44(0) 117 307 6870 or on mary.gaskins@burges-salmon.com

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