Divorce proceedings can be complicated and messy affairs. A common occurrence in cases involving significant settlements is that one party tries to hide their assets, whilst the other does everything they can to find them.

Both legal and illegal methods have been known to be used by clients to obtain such information from the other party. Examples include the interception and opening of mail, rifling through desk draws and filing cabinets and the copying of documents. The family courts have in the past tried to strike a balance between the interest of open and fair proceedings in family law and the illegality of the tactics used to obtain the information.

All this may be about to change thanks to a recent decision upheld by the Court of Appeal. As a result of the decision, celebrity chef Marco Pierre White is pursuing his ex-wifes’ lawyers for alleged involvement in the interception of White’s personal documents. This has understandably had an impact on family lawyers, who are now wondering if they will in future be vulnerable for the actions of their clients.

Thanks to the 1992 case of Hildebrand v Hildebrand copies of documents left lying around or open can be used as evidence in a proceeding as long as the original is then returned. With the emotion that a divorce can evoke, it is not surprising that the requirements of Hildebrand can be misconstrued by clients, who despite being told what is and is not permissible still arrive back at their lawyers’ offices with stolen emails, unopened mail and even computer hard drives. To avoid any confusion, expert family lawyer and partner at Anthony Gold, Margaret Hatwood explains to her clients “you can look in the briefcase but you’re not allowed to break into it.” Ms Hatwood says that with the latest events in the White case, generally, “lawyers are being a lot more cautious about what they say to their clients so that no misunderstandings arise.”

A worrying reality is that if the rules are tightened then the fairness of certain divorce settlements is likely to be jeopardised. The primary reason for obtaining documents in the allowed manner is because one party feels that the other is not fairly and fully disclosing all the relevant information. Furthermore, in high-value divorce cases one party may be doing their best to hide assets and minimise the information they reveal to the other side. Whilst certain rules must be followed when dealing with the other party’s documents, if the rules are tightened it could significantly affect the fairness of divorce proceedings. As Ms Hatwood explains, “in many cases you have inequality of arms and one legal team may have to work very hard indeed in order to get proper disclosure, if these rules are tightened up then you may never get full disclosure.”

Until the decision in the White case is given it is unknown if the rules are going to change. Regardless of the outcome, it appears family lawyers will be very careful when giving any advice to clients wanting to do their own detective work.

-Adrian Trotman