Confidentiality in Marriage

The court’s ruling on the divorce of the ex Delmonte CEO Vivian Imerman and Lisa Tchenguiz, the sister of property tycoons Vincent and Robert Tchenguiz who we acted for, raised the interesting issue of whether one spouse can claim confidentiality over documents that relate to ‘marriage assets’.

During the marriage Vivian had worked closely with his brothers in law reaping the benefits of their business contacts and even working from Robert’s offices. When Vivian was discovered having an affair with his ex-wife, the marriage broke up and the brothers-in-law unsurprisingly didn’t want him using their office. As things turned sour, Vivian is said to have taunted the brothers claiming that their sister would get nothing as all his assets were hidden.

Robert, with a view to protecting his sister, accessed the server at his office which had been used by Vivian, to download thousands of documents pertaining to Vivian’s trusts and financial affairs. He then sent these to his sister’s solicitors. Vivian subsequently issued proceedings for the return of all these documents.

Historically, divorce law has said that if you find documents (for example, those left visible in the home) relating to your spouse’s assets, then you can use them as evidence to support your case. The brothers put forward a novel argument that in today’s world, marriage should be viewed in law with the same eyes as that for partnership i.e. equality between the partners (In law, there is no confidentiality of documents pertaining to partnership assets.) This is not to say that people should be allowed to pry into their spouses private diaries, but simply that one spouse cannot argue confidentiality over documents relating to assets over which the other spouse is entitled to.

Unfortunately for Lisa, the Court held that all Vivian’s information had to be returned as otherwise it was a breach of his right to privacy. Lisa’s only saving grace was that she would be allowed to cite as evidence her ‘memories’ of what she had seen. The court’s rationale for the decision was that there are existing measures in place to elicit a spouse’s financial position and Lisa could therefore have applied for a search order if she suspected Vivian was being less than truthful about his assets.

So, what does this mean for us? Firstly, applying for a search order is an extremely expensivae process and outside the means of most people. Secondly, to get a search order you need evidence that the documents exist. Consider the situation where when the relationship was going well your spouse mentioned to you that he or she had a significant assets in an offshore trust. Later on down the line, in a divorce, your spouse then completely denies the existence of a trust and you have no documentary evidence upon which to rely to get a search order.

The court has in effect sanctioned situations where a cheating husband is going to claim confidentiality in respect of documents that he does not wish the courts to see in a divorce. Unfortunately, this will only encourage the conduct of a spouse who knowingly and dishonestly tries to conceal their true assets from their spouse in a divorce.

Freya Zaiwalla, Zaiwalla & Co. Solicitors