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Divorcing couples can no longer use secretly obtained documents

Divorcing couples will no longer be able to use secretly obtained confidential documents as part of their evidence.

The landmark ruling was handed down by the Court of Appeal in a case involving a wealthy couple going through complicated divorce proceedings. The issue arose when the woman’s brother downloaded information which gave details about her husband’s financial affairs.

The documents allegedly proved that the husband was withholding information about his wealth so he could negotiate a lower divorce settlement.

The husband took legal action saying the brother had no right to download his private documents. He won his case in the High Court which granted an order that the documents should be handed back.

That decision has now been upheld by the Court of Appeal.

It has never been permissible to obtain documents by force such as by breaking into a cabinet or an estranged partner’s home. However, until now, there was a practice known as the Hildebrand rules which meant that if a husband or wife came across a confidential document proving that their partner was withholding money then they could use it as evidence in court.

That practice must now stop following the Appeal Court ruling. Many legal commentators believe the Hildebrand rules were in need of clarification due to the rapid rise in technology which means information can be accessed from emails or downloaded from a computer.

In giving his judgment, Lord Neuberger said: "It follows that nothing in the so-called Hildebrand rules can be relied upon in justification of, or as providing a defence to, conduct which would otherwise be criminal or actionable."

The judgment means that if a husband or wife in a divorce case take documents without permission, they could face heavy costs or even criminal proceedings.

They can still, of course, apply for a court order to obtain documents or freeze assets.

Please contact us if you would like more information about this or any aspect of matrimonial law.

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