Court of Appeal clarifies spouses' duties of disclosure

Evidence of a spouse's financial position is admissible in divorce proceedings, even if wrongly obtained, according to comments in a recent Court of Appeal application.

Solicitors acting for the wife of famous chef Marco Pierre White obtained and held onto more than 40 personal, private and confidential letters and financial documents belonging to him for several months. They also held an important commercial contract, which he never received.

Guidelines about a person's rights to take and copy their spouse's correspondence and documents were set out in a legal case in 1992, called Hildebrand v Hildebrand. The result is that the courts will rarely punish a person who takes, copies and immediately returns any of their spouse's document, provided no force is used, and provided there has not been 'interception' or 'retention'.

Mr White is arguing that his documents have been intercepted and retained, and the Court of Appeal has given him permission to proceed with his claim against the solicitors for unlawfully intercepting, withholding and interfering with his correspondence and documents. The penalty could be a finding of litigation misconduct, resulting in a costs order against his wife.

However, the Court's decision highlights that any evidence obtained from a spouse, even if obtained wrongly, can usually still be used in evidence against them. This is because of the overriding obligation of a spouse to make full and frank disclosure of their financial affairs and other information in divorce proceedings.

Recommendations

• Spouses should ensure they make full and frank disclosure of all documents and correspondence, particularly relating to their financial position.
• Where one spouse obtains documents or correspondence belonging to the other, these must not be obtained by 'interception', and should be returned to the owner as soon as possible.