Confidentiality and privacy in financial proceedings

In financial cases between separating spouses, most couples agree to exchange information openly and honestly however there are exceptions to this rule.

We are sometimes asked by our clients if their spouse’s confidential documents relating to their ex-partner’s personal life, finances, business dealings and assets can be used in proceedings. This is a difficult issue which has had contrasting legal principles over the years and I will do my best to explain it simply.

Following the landmark case of Imerman v Tchenguiz in 2010, the starting point is that a spouse’s confidential documents should remain private unless that person waives this privilege and provides their spouse with access to it.

The key facts to take away from this case are:

  • If documents are within your spouse’s private domain, you are not allowed to access them or copy them. This extends to any documents which you know that your spouse would not agree to you looking at including documents in a locked filing cabinet, electronic documents which are password-protected or even documents which have been left in the open.
  • This rule does not apply to any information regarding joint assets and accounts.
  • If you do access your spouse’s private documents, this is an offence which carries criminal penalties and you could also be sued by your spouse.
  • If you supply confidential documents to your solicitor, he or she cannot read them and must immediately seek to return all documents and copies to your spouse’s solicitor or approach the court for directions. If your solicitor does not do this, the court could disinstruct your solicitor.
  • If you have accessed private material, you would be allowed to rely on your knowledge of the documents to challenge the genuineness of your spouse’s disclosure in the proceedings so long as you do not reveal clearly privileged information.
  • If your recollection of the confidential documents clearly shows that your spouse is dishonestly dealing with his assets and there is a clear risk of dissipation, then you can inform your solicitor who will consider how best to deal with this.

It is important to be aware that, even in a marriage, you have a right to privacy from your spouse. Confidentiality exists between spouses whether before or after the breakdown of the marriage and there are legal guidelines in place which must be followed. Ultimately, the court does have the power to admit or exclude evidence but this is a finely-balanced decision and it is always best to exercise caution.

If you have any concerns about this, we are happy to help.

By Charlotte Hayes-Sennett (Associate Solicitor) at the London office