This is known as ‘self-help’ and covers not only paper documentation but also documents that are held electronically.
The court does not permit parties to self-help to obtain information to be used within divorce proceedings. In fact, it is a breach of confidence (for which the owner of the documentation can sue) for a person to examine, or to make/retain or supply to a third party a copy of, or to use the information contained in a confidential document.
In some cases, the confidential nature of a document is lost, and so it can be used. This might be the case if the party that owns the document has left it out in the family home, for example. Each case will be determined on its merits.
Where confidential documentation is provided to a lawyer by their client, the lawyer is under a duty not to look at it (or to desist from doing so once it has been established that it is confidential), to return the documentation to its owner, and must not take copies.
It is understandably very frustrating for clients that cannot use the documentation that they have seen to prove that their ex has not been honest about their financial situation, but there are some other methods that can be used to establish the true financial position:
Questions may be asked of the ex-spouse based on the other party’s memory of what information was contained in the documents. The ex-spouse can also be cross-examined in court about the assets/documentation:
- The court can order the party to make specific disclosure (and the breach of such an order is potentially contempt of court)
- The court can order a third party to provide information or documentation e.g. it can order a bank provide statements for all accounts that belong to that person
- It is also possible to apply to the court for a search of premises and seizure of relevant property (such as financial documentation, computers etc.) that belongs to the ex-spouse. There must however be a real possibility that the property exists, and that the ex-spouse will destroy it before the court will be willing to make such an order. The execution of the order may not be successful, and it is likely to be very expensive.
In cases where documentation cannot be obtained to prove the existence of an asset, it is still possible to ask the court to make an ‘adverse inference’ against the ex-spouse, i.e. for the court to determine that an asset exists, and to make a judgment which includes it.