Sometimes clients come in following separation with documents that do not belong to them but that instead belong to their spouse eg bank statements, pension or company documents, or other such financial papers. I am usually asked to use these in the divorce.
The question I have to ask myself is “Can I consider these documents?” If not what advice must I give and is it ever possible to use such information in court proceedings?
This is a complex area of law. Unfortunately reported cases are not always in line with each other making interpretation of the law sometimes difficult.
The start point is that it is never permissible for a spouse to illegally obtain information or documentation to use in divorce proceedings. For instance it would be wrong to hack into someone’s laptop to gain information to use in the divorce proceedings.
If the documents have been picked up say in a study or on the coffee table at home, then clearly they have not been obtained illegally. I would take the documents from the spouse and immediately pass them to the other spouse’s solicitors. I cannot copy them but it is to be anticipated that the other solicitor, knowing of these documents, would then advise their client to fully disclose those documents which are relevant in line with the duty to disclose.
If someone does not disclose his/her financial position fully or truthfully within court proceedings then clearly the suspicions of the spouse who has seen documents must be raised with the court. The court has a range of powers available to deal with this situation.
The court could order a spouse to disclose specific documents or information on threat of imprisonment. An order could be obtained against a third party ie accountant or bank, to give disclosure. In serious cases a search order might be appropriate.
If all else fails the client can give evidence to the court on what he/she believes to be the case and ask the court to draw “adverse inferences” ie to find that there is a reason why certain information is not being provided by the other spouse. Usually this is because they have assets or income they do not want the court to know about and the court can take this none disclosure into account when deciding how assets and income are to be divided on divorce.
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