The divorce solicitor’s role in full and frank disclosure can be dangerous

8th March 2015 by

 

The divorce solicitor’s role in matrimonial proceedings is crucial; they must guide and advise clients and aid the timely conclusion of any court proceedings – whilst always attempting to achieve the best possible outcome for their client.

The special nature of a financial settlement on divorce, or ancillary relief proceedings, requires both parties to give “full and frank disclosure” of their assets, wealth and financial position.  It is often presupposed that spouses may be less than forthcoming with such details when they are trying to protect personal finances, but the court has firm rules about how parties to a divorce go about collating their information on each other’s monetary situation.

Witholding information

If a party to a divorce believes his or her spouse is withholding information regarding their finances, family law lawyers must be acutely aware of their obligation to somehow achieve this full and frank disclosure whilst not breaching human rights laws regarding privacy.

In 2009/10 the case of Marco Pierre White and his estranged wife made headlines across the country when the Court of Appeal in London granted the celebrity chef the right to take Mrs White and her divorce solicitors to court over breach of privacy after she was allegedly advised by her solicitors to intercept and withhold his personal mail.

Both parties denied the accusation, but the appeal judge was highly critical of Mrs White’s divorce lawyer and questioned his reasoning behind keeping original documents supplied to him – one of which was a highly personal letter from Marco Pierre White’s daughter from a previous marriage. White maintained he had not seen the letter until it was presented in court as evidence.

Hildebrand rules in full and frank disclosure during a divorce financial settlement

The White’s divorce case caused family law practitioners to take a brief look back at generally accepted rules known as Hildebrand.

The Hildebrand case was settled in 1992 – a husband procured documents from his estranged wife’s home and then produced them in court in an attempt to prove that she was withholding information.

The husband was not allowed to use the evidence in the ancillary relief proceedings until he had disclosed it all to his wife and her lawyers.

From Hildebrand v Hildebrand – and further to more recent cases involving digital media and the downloading of documents from hard drives and laptops – divorce solicitors have assumed a set of guidance rules for the procurement of evidence and generally advise their clients accordingly.

The guidance follows that the family law courts will not penalise the taking, copying and immediate return of documents for use in ancillary relief proceedings, but a spouse should:

  • Not use force to acquire documents;
  • Not intercept documents and digital files;
  • Not retain documents or delete files;
  • Not remove documents electronically stored on a hard disk;
  • Always disclose evidence contained in procured documents, even those wrongfully obtained, prior to the proceedings; and
  • If a spouse is found to have obtained or retained documents unlawfully this may lead to litigation for misconduct or an order for costs.

Legal advice from Healys’ divorce solicitors in London and Brighton

Healys’ family law team has a proven track record in successfully advising and representing clients in a wide range of sensitive family law issues; including complex and disputed financial settlements on divorce.

Whatever your issue, you can rely on us to deal with your case sympathetically, efficiently and always in confidence.

Call Catherine Taylor in our Brighton office on 01273 669 124 or e-mail on catherine.taylor@healys.com

Alternatively, contact Jane Sanders in London on 020 7822 4107 or email jane.sanders@healys.com

Rest assured, we are divorce solicitors who know our Hildebrand rules, but we recognise how to get the most favourable outcome for our clients.