Confidentiality and Self-Help in Divorce Proceedings: Key Legal Risks

During the breakdown of a marriage, it is somewhat common for one spouse to suspect that the other has not been open about their finances, leading some to consider accessing private information without consent. In practice, this could involve reading emails, opening personal files, or examining devices to find evidence that supports those suspicions. While the desire to uncover the truth is understandable, such actions can have serious legal consequences, and the law imposes clear limits on what can be done.

The Hildebrand Rules

Historically, family courts developed the Hildebrand rules to address situations where a spouse accessed documents belonging to the other. These arose from a case in which a husband took copies of his wife’s private documents and was later permitted to rely on the information in divorce proceedings. The courts took a pragmatic approach. They did not penalise the simple act of taking, copying, and immediately returning documents. However, the use of force, the interception of communications, or retention of documents was not permitted. The rationale was that full and frank disclosure is central to family proceedings. Even if documents were obtained improperly, the information itself could be admitted in evidence because of the overriding duty to ensure honesty in financial disclosure. This approach encouraged spouses to seek documents if they believed it would help determine financial provision.

The Imerman Case

The position changed with the Court of Appeal’s decision in Imerman v Tchenguiz. The judgment made clear that the Hildebrand rules do not protect those who engage in self-help. Spouses must now exercise caution before attempting to access confidential material belonging to the other. The case clarified two key points. First, it outlined how documents obtained through self-help, so-called “Imerman documents,” are treated within matrimonial proceedings. Second, it confirmed that the Hildebrand rules cannot be relied on to defend actions that could constitute a breach of confidence, misuse of private information, or even criminal conduct.

Breach of Confidence

The judgment also provided guidance on the law of confidence. A breach occurs when one spouse, without authority, examines, copies, retains, or shares documents that are known, or ought to be known, to be confidential. Importantly, confidentiality does not depend on locks or electronic security but on the reasonable expectations of the parties in the circumstances of their relationship. Context is key. For example, if a husband leaves a bank statement open in a shared space such as the kitchen or bedroom, it may not retain its confidential character against his wife. Conversely, if it is stored in a private study, particularly in a drawer or locked desk, the expectation of confidentiality is stronger. Even personal diaries or journals left visibly on a dressing table may still retain confidentiality. This reflects the reality of family life, where privacy between spouses can be complex.

Remedies for Breach

If a breach of confidence occurs, the law offers several remedies to protect the wronged spouse. These include injunctions to prevent further acts of self-help, to restrain the use of any obtained information, and to secure the return or destruction of copies. Such remedies are designed to limit harm and restore control over sensitive material. Successful claims can also lead to financial compensation, and claimants are ordinarily able to recover reasonable legal costs. These protections underline the seriousness with which the courts treat breaches of confidentiality, even in the emotionally charged context of divorce proceedings.

Seeking Legal Advice

The key lesson from Imerman is that self-help carries significant risks. What may appear to be a practical step to uncover hidden assets can expose a spouse to liability for breach of confidence or misuse of private information. Once confidentiality is lost, the damage can be difficult or impossible to reverse. It is therefore essential to seek urgent legal advice before taking any action. Expert lawyers can guide spouses on proper disclosure procedures and advise on available remedies if there is concern that a partner is withholding information.

Conclusion

Courts recognise the importance of honesty and transparency in divorce proceedings. At the same time, they are clear that private information cannot simply be accessed at will, even between spouses. The shift from the Hildebrand approach to the stricter position in Imerman reflects a growing respect for privacy and confidentiality in family law. For separating spouses, the message is clear: taking matters into your own hands can carry serious legal consequences, and professional advice is essential to balance disclosure obligations with the protection of private information.

For more information on claims for breach of confidence

If you would like advice about issues of confidentiality in divorce proceedings, please contact Taylor Hampton Solicitors on 0207 427 5970 or at enquiries@taylorhampton.co.uk.

Disclaimer

This publication is a general summary of the law. It does not constitute legal advice and should not be relied upon as such.