Marilyn Stowe Blog

The family law case of the year: Imerman v Tchenguiz

As we gallop towards the end of 2010 my thoughts have turned to just what has happened over the past 12 months. In particular, which has been the “stand out” family law case of this year? My choice is not as clear cut as many would think…

No doubt if asked, most would say it arrived on the 20 October with the Supreme Court’s decision in Radmacher. It was a spectacular case that made headlines across the world and effectively “legalised” prenuptial agreements. It pitted a massive number of judges against each other, with eight of the top non-family, specialist judges working to reach a decision alongside just one family judge, who was fiercely opposed to the outcome.

Why, one may wonder, were there so many judges? And why was there only one family judge sitting in what was quite clearly a family case? One reason might be that it was a seriously glamorous case involving rich photogenic people, and therefore made good press. Overall, and despite the dissenting opinion of Baroness Hale, I liked the judgement and still do. It was a modern, forward-looking interpretation of the law that didn’t require the introduction of new legislation from Government.

What makes the decision even more interesting is that it also had royal overtones. On exactly the same day Prince William proposed to Kate Middleton in Kenya. And whether the proposal took place by coincidence (he had by his own admission been carrying his mother’s iconic engagement ring around Kenya for three weeks beforehand), or whether there is a royal prenup that was legalised by the decision in Radmacher, it adds even more mystery and glamour to the case. But it matters not; if the royal marriage is successful it will forever remain a closely guarded secret that has little bearing on our lives.

So Radmacher is certainly one of the stand outs of the year. But for me, it isn’t the winner. There were many cases and rulings that were robust:virtually “ring fenced” non-matrimonial assets,  post-separation accruals, cohabitation and continuing maintenance. All very interesting. However, none of them touches my winner for 2010. The winner is in a different league altogether. Drum roll please…

As a family practitioner, interested in fairness between the parties, I think the stand out case of the year is the Imerman decision. This was the case in which the Master of the Rolls himself (again a non-family lawyer) handed down a decision from the Court of Appeal that outlawed any measure at all, of innocent “self help” (a concept I discuss here)  between husbands and wives, even where one party will not and will never comply with the duty of full and frank disclosure. It is a decision which horrified me when I read it, as it affected the basis on which we had all been acting and advising clients and I immediately realised the negative impact it was likely to have on divorcing couples.  One lawyer publicly called it a “Cheats Charter” at the time, and while I thought that was harsh, several months on I tend to agree.

Having seen how it operates in practice, I now regard it as by far and away the worst decision that I have ever come across in relation to ancillary relief. It is for a start, completely unworkable. How many clients don’t have any documents at all about their spouse? I would suggest very few if any. But because they are no longer supposed to have these documents, copy them, or discuss them with their own lawyers, even if they have been found or have simply left lying around in their home, they are supposed to replace them, and then conveniently forget about them and pretend they know nothing about them . This is because even though it is going to make their life miserable, tougher, unjust and vastly more expensive in legal fees, the law has to be obeyed. This decision, which flies in the face of common sense, has significantly altered the balance of fairness between the spouses, and made life very tough indeed for clients who are married to duplicitous and secretive spouses. Clients and their lawyers have, by that one decision, been judicially blindfolded. They have had their hands firmly tied behind their backs, and breach of the law produces the most unfair and costly consequences.

It seems clear that spouses who are intent on secreting away assets are getting away with it wholesale. The suggestion made in the Imerman ruling that there would be an increase in the number of Anton Pillar orders (search and seize), to counter the effect of the judgement, simply hasn’t happened. How could it? These orders are so unbelievably costly – disproportionately so for the majority of cases – and so incredibly risky that few would ever try them. They are the last resort, not the first – as any family judge will know.

However lawyers and their clients who are reluctant to disclose have pounced on the Imerman judgement. All of them have adopted the same tactics, realising they have been handed the judicial equivalent of an Uzi submachine gun.

So if, say, a wife files her questionnaire concerning the husband and seems to know far more than he has included in his Form E disclosure, she will find herself bogged down in legal arguments. These arguments will centre on what she knew, what documents she retains and if and when, her lawyers – heaven forbid they must become involved in all these legal semantics – have had sight of those documents. The wife and her lawyers can even be ordered to pay costs after a judicial grilling which has served the progress of the settlement itself not one jot. Ultimately, the wife pays a miserable and frustrating price for retaining documents revealing assets that she correctly guessed her husband had no intention of disclosing on his Form E. This is despite the fact that failure to disclose on his Form E is itself an offence.

Conversely her fortunate husband can take full advantage, deliberately diverting attention away from a critical examination of his financial affairs. He may walk away from court with the first round to him, his wife worn down, an elongated timetable that suits him and, perhaps, a costs order in his favour. It won’t stay that way, but given the pressure for court hearing time, the overall length of the process and the costs involved, this state of affairs desperately needs to change – and fast.

I am not suggesting that what happened in Imerman itself should be condoned. Quite clearly the misconduct went far too far. However, I do believe that miscarriages of justice are occurring all across the country and an unsavoury pattern of conduct is developing that permits substantial dishonesty, which in turn leads to financial loss to the weaker party.

I believe the judiciary in family courts need to state clearly that in proceedings between husbands and wives, who have jointly and legally agreed to share the most intimate of relationships with each other, they will be treated as having waived their rights to privacy against each other in cases involving innocent forms of self help. They should not and in reality cannot be treated in the same way as unconnected and unrelated commercial entities. Their marriage has already produced a legal partnership with its own set of rights, obligations and duties. Their lives are already intertwined.

If we value marriage as an institution we should recognise that innocent self help is lawful and not an invasion of privacy, as was originally believed to be the case following the Hildebrand decision. When pieces of paper come to light in the family home, we clearly need a dose of plain common sense to prevail.

Sorting this situation out from the farce it is fast becoming is now a job for the Supreme Court or the legislature.  But given the composition of commercial judges sitting in family proceedings, can we even be sure that they will demonstrate the common sense and understand things as many family lawyers do? They didn’t see things in the same way as the purist family lawyer Baroness Hale in the Radmacher case. But as we also saw in that decision, it did not prevent them from interpreting the statute in novel ways, and ruling accordingly.