Millions of reasons to disclose

Document disclosure is  vital in some divorce cases, as the long and bitter Young row demonstrates

After almost seven years of litigation, this month saw the start of the final hearing in one of lengthiest, most complex and, some say, most acrimonious divorces ever to come before the English courts, that of Michelle Young and her husband Scot.

Thomas

The parties could not be further apart: Michelle’s case is that her husband failed to disclose hundreds of millions of pounds, having allegedly disguised it in a mesh of complex offshore interests. He claims to be millions in debt.

These polarised positions brings into harsh relief the difficulties with the rules of disclosure in family law. 

Until 2010 the case of Hildebrand (1992) had been cited in almost every divorce case, for the proposition that spouses could help themselves to their partner’s documents, provided they disclosed them, returned the originals and kept only copies. 

This was seen as redressing a power imbalance that could operate against the spouse who did not control the finances – in most cases, the wife.  The applicant in a financial claim arising from divorce is in an unusual position, in that they usually have to rely on the co-operation of the respondent to obtain documents to build their  case. 

Given the apparently established status of this self-help, the 2010 Court of Appeal (CoA) case of Imerman was met with shock by most family lawyers. The CoA declared that no such self-help was permitted in family proceedings. The underpinning of Imerman was the proposition that the right of confidentiality exists between spouses to the same extent as it does between any people. In short, marriage does not diminish the confidentiality to which a husband or wife is entitled in respect of their financial affairs. 

It is suggested that the basis of Imerman is doubtful as a matter of principle. While we do not live in a community of property jurisdiction it is hard to square that central proposition with judgments that declare marriages to be equal partnerships. One of marriage’s primary tenets is the joint creation and preservation of wealth. On the breakdown of that union the application of an unmoderated civil duty of confidence to a central purpose of the parties’ marriage seems to conflict with the recognition of equal status, particularly if its effect is to thwart one party’s ability to show the court what the joint fruits of the marriage really are.

The principal consequence of Imerman has been a growth of specialist expertise at the high-value end of the family law market in adopting a forensic approach to disclosure. Wives who face a wealthy but recalcitrant husband would be well advised to seek out this expertise to show the court the full picture.

In the present case, information suggesting that Scot Young had about £400m was found on a computer hard drive. The case has centred around what has happened to those assets. The find took place years before Imerman and the computer had been given to the couple’s children, so the documents entered the proceedings. It begs the question of whether justice could have been done had that knowledge been suppressed.