The English Court of Appeal in Imerman v. Imerman June 2010 struck a deadly blow to parties in a divorce action who surreptitiously obtain financial documents belonging to their spouse.
In high net worth divorce cases, where assets may be held in several jurisdictions and where a spouse may decline to disclose all of his/her assets, the non-owning spouse’s method of gathering information and documents frequently includes scouring home offices, kitchen drawers and bedroom end tables.
Often this evidence is crucial in providing proof of off-shore bank accounts and other assets including trusts set up in tax haven countries. Once the evidence is obtained and provided to opposing counsel, the practical onus is on the spouse who owns the assets to provide an explanation.
In British Columbia the court has held in Cunha v. Cunha that where there is incomplete disclosure, the court will presume that the hidden assets are as valuable as the disclosed assets. Without a credible explanation the non-owning spouse is often awarded all the disclosed assets, instead of just fifty percent of the assets.
The English Court of Appeal has now blocked that avenue to spouses (usually women) who are seeking their rightful share of family property. Based on this new law, the Court will not admit evidence that has been obtained by subterfuge by a spouse or an agent for a spouse.
This law will be devastating to spouses whose only real chance of obtaining a fair division of assets is to ferret them out themselves. The winners will now be those who perfect the practice of non-disclosure and that is simply wrong.
Lawdiva aka Georgialee Lang