04 August 2010

Sharing fairly

Surprising as it seems, when marital parties decide to split and get a divorce, they don't always tell the truth. Amazing. The decision in Imerman last week has somewhat shaken family law in the country. Now the one means of providing information that raises any doubts or provides the means to get an order in court to discover the truth about that full and frank disclosure of financial means is not open to the party. The person using what may appear to be underhand methods of finding information is often desperately seeking correct information where there are suspicions about the financial position. Don't we all realise that at the end of a marriage not everyone wants to share fairly?

Whilst it may appear ‘sneaky' to go through the matrimonial household files (whether they be lodged in the spare bedroom or on the laptop) to gain information on bank accounts, holdings and the like, it may, nonetheless, well be less ‘sneaky' than a party keeping it to themselves in the first place. How can suddenly finding it a breach of confidentiality help resolve these problems in family law? None of it is ‘fair' - but some is fairer than others. As my fellow columnists have noted in the last few days (see Amandeep Gill, Sandra Davies and David Hodson) it is, indeed, a "sad event for honesty and integrity in family law". They have got it right. Costs will increase, there will be more applications for freezing orders (that will improve the atmosphere no end) and the general approach will become less honest and frank, not more.

Another ‘landmark victory' in the news - I see that a council that spied on a family over their application for a school place and wanted to find out if they were ‘school cheating' acted unlawfully, according to a tribunal. The family won against council officials who spied on them to check that they lived in the school catchment area in which they claimed in order to gain a place at the school of choice. Poole Borough Council broke the law it appears, having used powers intended to catch terror suspects and serious criminals by using those powers to secretly monitor the couple and their three daughters. Council officials had claimed it was necessary to use the Regulation of Investigatory Powers Act to find out if the family had lied about their address to win a school place for their youngest child. There was more than just confusion over the addresses and the homes the family had, they were legally-held and their application was in accordance with the rules of the application.                                       

Makes an interesting contrast with the approach in Imerman, does it not? Do the ends justify the means?

Penny Booth is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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