...except my bank statements,
my diary and the vintage Porsche I haven’t told you about.
Should married couples share
everything?
A recent internet statistic claims that one third of people would be willing to snoop on their
partners to see if they are having an affair.
But what if you’re after more than evidence of an indiscretion? If partners are willing to snoop to discover
the true extent of their other half’s social exploits then what about their
financial exploits?
The law recognises the need
for privacy and confidentiality, even against one’s spouse. The subject was considered in the much
publicised case of Imerman [2010] EWCA Civ 908 which went to the Court of Appeal. In that case Lord Neuberger MR stated that:
“The notion that a husband cannot
enjoy rights of confidence as against his wife in respect of information which
would otherwise be confidential as against her if they were not married, seems
to us to be simply unsustainable.” (para 82) and
“Subject of course to the court being
satisfied that the normal equitable principles would otherwise be in play, a
claimant is not to be denied equitable relief merely because the defendant is,
or has obtained the material or information in question from, his or her
spouse.” (para 85)
In other words, if a spouse gathers evidence surreptitiously, their other
half will still have all the remedies available to them which would exist had
their spouse been a complete stranger, such as ‘breach of confidence’, ‘theft’,
or ‘offences under the Computer Misuse Act 1980’.
The equitable relief that Lord Neuberger was referring to in Imerman was
the return of hundreds of thousands of documents that the wife’s brothers had stolen from the husband’s computer. These
documents were confidential to the husband, and the wife had no more right to retain
them than the husband would have had to retain a copy of the wife’s personal
diary (assuming she kept one).
So, there exists a right to confidentiality between spouses (which I am
sure many people will be very relieved to hear) but what happens when the
parties separate and there are financial proceedings on foot? The Court requires both parties in
proceedings to give full and frank disclosure of their financial circumstances. Documents, including bank statements, asset
portfolios and property valuations, which can be kept secret during the
marriage, must be laid bare. This did not help the wife in
Imerman as it was held that the fact that the husband would have been under an
obligation to disclose the disputed documents was not relevant to the principle
of confidentiality. Interesting
then, that a couple who are going through a divorce owe each other a greater
obligation to disclose their financial affairs than a couple who is happily
married.
Should the same level of financial
disclosure exist within a marriage as on divorce? After all, it is not just the assets which
couples are keeping from one another but debts too, £41billion according torecent reports. Such dishonesty could
lead to bankruptcy, and further financial consequences for the whole family, so
perhaps there is an argument for saying that spouses must share such
information with each other? It does
still leave the problem of actually obtaining the information as, even if spouses
were obliged to share their financial position with one another then, according
to Imerman, a spouse who sought to obtain information from their other half
through dishonest methods could still be breaking the law. The only solution would be to remove the
principal of confidentiality against one’s spouse and the Courts have made it
quite clear that they are not prepared to do that.
If you’d like to read more on this topic then Mr Justice Mostyn gave an excellent analysis of marriage and the economic relationship between spouses in his address to the All ParliamentaryGroup on Family Law in 2010.
Don’t be shy! Tell me what you think.