Jessica from Weybridge writes: My daughter has been married for over 22 years to a successful businessman. They enjoy an enviable lifestyle with homes here and abroad, smart cars, etc. I have three lovely grandchildren. We all thought they were happy together, but we were wrong. My daughter has discovered he is having an affair. She found incriminating emails and photos on his BlackBerry and hired a private detective. His report leaves no room for doubt. She tells me she has been unhappy for a long time and is determined to seek a divorce. My son-in-law is a secretive man, but my daughter is no fool. She copied the key to the strongroom where he keeps his business papers, plus she knows his computer password and can access many of his bank accounts and files. And if I can put it this way, she knows where some of the business skeletons are buried. She has not yet confronted him. She is sure he will become very vicious and will try to hide his assets. I have told her to make copies of everything, then take them to a good divorce solicitor. Is this good advice?
Jessica, this would have been good advice until an important case decided by the new Master of the Rolls, Lord Neuberger, just last year. It is no longer. Hitherto a blind eye was routinely turned to divorcing wives who stole or copied any business papers of their husbands on which they could lay their hands, provided they did not do so by force (which of course, in practice, they never needed to). These secrets were then deployed in the litigation. Often this led to an advantageous out of court settlement.
This area of the law owes something to our own community. The previous "anything goes" situation was loosely known as the "Hildebrand Rules" from a divorcing couple of that name. This latest case is Imerman v Imerman. It is all in the public domain.
In essence, Mrs Elizabeth Imerman (née Tchenguiz) is a beautiful socialite. She was divorcing the extremely wealthy Mr Vivian Imerman. She too discovered he was having an affair, in this case with his ex-wife. (Incidentally, this perhaps disproves what Groucho Marx ungallantly said after re-marrying his first wife, that "a twice-smoked cigar never tastes as sweet".) However Mr Imerman shared offices with Elizabeth's no less wealthy brother, and allegedly told him that Elizabeth "would never be able to find my money, which is well hidden". Her brother now obligingly copied a vast quantity of Mr Imerman's private business records and emails from his computer server, passing them to his sister's solicitors.
Mr Imerman refused to take this lying down. He did not lack the means to fight back. As I am fond of quoting: "The English law, like the Ritz Hotel, is open to all". He went to court seeking a raft of injunctions forbidding his wife, her lawyers, her brother or anyone else remotely involved, from retaining or in any way making use of his confidential information, whether in the divorce proceedings or otherwise. He contended that it had all in effect been stolen from him, and moreover at a time well before he was obliged to make disclosure of his assets to the court. Largely he succeeded.
In a landmark decision, Lord Neuberger held that the old ways of doing things in divorce had to change. No longer could the important rights of a citizen to privacy and confidentiality simply be ridden roughshod over by a wife who claimed her husband would otherwise hide his assets on divorce.
No longer can lawyers (nor should you, Jessica) simply advise your daughter to purloin confidential information. If she were already legitimately in possession of it from the normal course of her marriage, then she is entitled to use it. What she should not do (whether by using a stolen key or password) is simply help herself to her husband's documents.
If there are legitimate grounds to fear that either spouse will conceal or dissipate assets before the court hearing, which will need to be based on something more tangible than just surmise and accusation, an urgent application can and should be made to the court. If necessary this can be done unilaterally and secretly. The court has powers to freeze and preserve assets, and to search and seize documents and electronic records. Lord Neuberger suggests that the court should more willingly employ these powers henceforward, in order to thwart dirty tricks by the husband and discourage self-help by the wife. Many lawyers say this marks an unfair shift in the balance of the law towards the husband. I personally disagree. But then of course, I'm a man.