Kim Aucott (Consultant Solicitor) and Andrew Scott (Associate Solicitor) in our Family Law team have written the below guide to help you understand the legal rules that apply to your ex’s personal information and documents.
The legal rules that apply where one spouse has obtained personal information or documents from the other spouse are known as the ‘Imerman’ rules. The Imerman rules apply to documents and information which belong to the other spouse and in respect of which that person holds a reasonable expectation of privacy and confidentiality. This covers a very wide range of material, including personal and private messages, emails and other digital messages, documents relating to their personal and family life, documents concerning their finances, and documents connected with any business dealings.
The crucial characteristic is that the material was stored or held by the other spouse in circumstances where they could reasonably expect it to remain confidential. It doesn’t matter whether the material is held in physical form or in digital form. What matters is that the material belongs to the other spouse and that it was not intended to be shared with you.
It is equally important to understand what does not constitute Imerman material. If documents were jointly created, jointly held, or were at some point shared with you by the other spouse, they will not typically be Imerman documents. Again, the question will always be whether the other spouse had a reasonable expectation of privacy and confidentiality in the material at the time it was accessed.
The fundamental rule is that you must not access, copy, retain, read, or make use of material belonging to the other spouse that you have come into possession of without their consent. In the Imerman case, the Court of Appeal made clear that there are no special rules in divorce proceedings that dispense with the ordinary requirement to obey the law in respect of confidential documents. A breach of confidentiality can result in civil liability. It can also amount to a criminal offence.
Even where you may genuinely fear that the other spouse is concealing assets, this will not justify taking matters into your own hands by accessing their confidential material. The law provides formal routes, such as court orders for the preservation and disclosure of documents, so any concerns you may have about the other spouse’s conduct should be addressed via those routes
Where Imerman material has been received
If you find yourself in possession of material that may be Imerman material, whether because it has been passed to you by a third party, found inadvertently, or obtained in any other way without your spouse’s knowledge, it is vital to act immediately and with caution. You must not read further into the material than you already have, and you must not share it with anyone, including members of your family or other advisers, until you have taken legal advice.
The procedure that applies next will be different depending on whether your spouse is legally represented or not.
If the other spouse is legally represented
Where your spouse is legally represented, the established practice is that you should not review the material further once it is identified as potentially being Imerman material.
Instead, the material should be placed in a sealed envelope or secured and your solicitors should then be instructed to write to your spouse’s solicitors to notify them that material of this nature has been received. Your spouse’s solicitor is invited to agree a process for dealing with it. If an agreement cannot be reached, the court will likely become involved. In this situation, the court would determine how the material should be handled, and whether it may be used in the ongoing court proceedings.
If your solicitors were instructed not to write to your spouse’s solicitors regarding the matter in such circumstances, this would result in a professional conflict, meaning that your solicitors would ultimately need to stop acting for you.
If the other spouse is not legally represented (a litigant in person)
Where your spouse is a litigant in person, the position requires particular care.
In this scenario, the same initial steps will apply, i.e., the material must be secured and not reviewed further. However, because there is no legal representative on the other side, it would almost certainly be necessary to make a court application at an early stage for a determination as to how the material should be handled. The court will need to be informed that the material exists and that it may be Imerman material, and it should make an order to protect your spouse’s rights while also ensuring that the proceedings are conducted fairly. The court’s involvement provides the necessary safeguard in this situation.
Fraud and iniquity exception
You should also be aware that there is a limited exception to the Imerman rules where the material reveals fraud or conduct designed to frustrate the enforcement of a court order or defeat a claim. In those circumstances, the family court may find that an exception applies, with the result that the material may be retained and used despite that it would otherwise be treated as confidential. However, this is a narrow exception which requires the family court’s involvement. It does not entitle a party to take unilateral action on the basis of their own assessment of the material.
Summary
The practical steps to take if you encounter documents/information that may amount to Imerman material include: securing the material immediately and not reading further into it; not sharing it with anyone; and contacting your legal representatives without delay.
Get in touch
Kim Aucott, Consultant Solicitor in the Family Department. She advises business owners and professionals across the UK on the breakdown of relationships as well as pre and post marital agreements where there are substantial UK and international assets.
Andrew Scott is an Associate Solicitor in the Family team. He deals with all family law-related issues, from divorce and financial remedy to private child arrangements. He also deals with cohabitation and asset protection issues involving cohabitation agreements and pre-nuptial agreements.
If you’re looking to understand more about your legal position contact one of our expert divorce and finances solicitors today on 0330 111 3131 or via our online enquiry form.