Following their separation, parties often remain living in the family home together until their separation is formalised by way of financial court order (which sets out the division of the financial pot between them).
When you are under pressure in this way and trying to reach a settlement of your finances it is very tempting to look at your husband or wife’s documents, particularly if you are concerned that they may try and hide assets or your don’t have full knowledge of their finances.
Does implied consent apply?
However, you should be very cautious as looking at these documents can impact on your settlement and conduct of your case. Whilst you are living together in the family home but are separated, the court takes the view that any implied consent that may normally exist between a married couple for documents left lying about the house to be reviewed by their spouse would fall away.
In the case of Imerman (2011) Mrs Imerman’s brother was concerned that Mr Imerman would conceal assets once she started divorce proceedings. She shared an office and computer system with him so accessed Mr Imerman’s computer, downloaded and copied documents and information stored by Mr Imerman. Some of the material was handed to her solicitor, who disclosed it to Mr Imerman’s solicitor. The Court of Appeal held that Mrs Imerman was not to have the documents in question returned to her and was not entitled to use any of the information she had gained through their improper acquisition and the documents must be retained by Mr Imerman’s solicitor.
Steps you can take to ensure your financial court order runs smoothly
It is an important factor to remember that you do not send any documentation belonging to your spouse to your legal advisor (unless your spouse has consented by exchanging disclosure direct). You can send notes on any documents belonging to your spouse you have had access to, but you should also provide an explanation of how you saw these documents to avoid this situation occurring.
It is always best to check the position with your solicitor before you send the information to them.
If you would like to discuss your divorce, please get in touch with our Family team who would be happy to assist you.