Tuesday, 1 November 2011

Disclosure - What's mine is not necessarily yours

The recent press coverage of Lisa Tchenguiz and her divorce from Vivian Imerman highlights one of the most difficult and controversial issues for divorce lawyers, particularly with regard to financial settlements, namely how to deal with someone who is not giving full documentary disclosure of their finances.  In particular, the question arises as to when, if ever, can one party obtain and use undisclosed information belonging to the other.
The Tchenguiz/Imerman case remains the latest word on the subject and the position is not necessarily a happy one.  Essentially, if one party does not comply with their duty to provide full disclosure, the other cannot just take their paperwork unless they would normally have access to it.  Many couples will have important financial documents filed wher both can access them.  It may also have been the case that, prior to the divorce, wives would have access to their husband's papers (and vice versa).  The problem arises if one party steps beyond that threshold and "breaks in" to a locked study, desk or computer and then passes any documents on to their lawyer.  The lawyer may then be compromised and cannot look at the documents.  In some cases, the lawyer may no longer be able to act.
The old adage that "two wrongs do not make a right" applies, although it can seem very unfair that a person who is deliberately not complying with their duty of disclosure can then cry "foul" against their spouse party for producing relevant information.  It is a timely reminder of the court's clear message that parties should not take the law in to their own hands.  Anyone who has such concerns should discuss what they can and cannot do with their lawyer before taking any action.
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