ENGLAND: Is there such a thing as a “marital fiduciary duty” in England? The reason I ask is that I just read about the divorce case between Vivian Imerman and Lisa Tchenguiz on Times Online. Imerman is a multi-millionaire, who, like a lot of wealthy men these days, claimed he was broke when it was time to divorce. As a result, his wife’s brothers, Robert and Vincent Tchenguiz, IP whizzes, broke into Imerman’s files and stole hundreds of pages of documents which they claim to prove his solvency and vast wealth; and which they claim they stole to help their sister with the divorce. The judge apparently ordered the brothers to return all the files to Mr. Imerman on the basis that his privacy was invaded. The brother’s appealed and a decision is pending:
Lawyers for Mr Imerman will argue that the theft of the documents was an invasion of his right to respect for his private life, a breach of confidence and involved criminal offences under the Computer Misuse Act and the Data Protection Act.
To allow such behaviour, they will argue, would lead to anarchy and vigilantism when the law already provides adequate opportunity for a divorcing spouse such as Ms Tchenguiz to apply to the court to seek access to whatever information is needed for the divorce proceedings.
In parallel proceedings in January Mr Justice Moylan strongly criticised the brothers’ behaviour as being at the “extreme end of the range of behaviour which I have seen during the course of the last 30 years”.
My big question is, why isn’t Mr. Imerman a fiduciary to his wife? Marriage is a partnership after all, and like any other legal “partner” his wife had a right to full disclosure. If he is in fact concealing documents and account and asset information, then, as his brother in laws have stated, he has “unclean hands” and should not be able to hide behind the Computer Misuse Act and Data Protection Act and any other law that will shield him from his fiduciary duty to fully disclose all his assets to his wife. Moreover, as the lawyers for the Tchenguiz brothers and Times Online assert:
The profession needs to know what is legitimate in relation to the taking of information by a spouse, either a divorcing spouse or on the verge of proceedings.” [The attorney] said that it was not wrong to take information “for the limited use of ancillary proceedings”. Even if it was, he said, there was a public interest defence on the grounds that the documents were needed to expose wrongdoing or iniquity in the form of concealment of financial information. Robert Tchenguiz says that he downloaded the information from a computer at offices that he had invited Mr Imerman to share after the businessman claimed that he had no money and his wife would get nothing in the forthcoming divorce.
It’s a tough call. While I can see the argument on both sides, I think that if spouses are going to conceal assets and fail to fully disclose their networth, then the law has to be relaxed to allow the “cheated” spouse to prove his or her case in court–even if it means stealing files and computer documents.