The Ultimate Memory Test: Trying to memorise the content of confidential documents (and the law after Imerman)

Many people going through divorce and the associated financial remedy proceedings believe if they discover financial documents belonging to their spouse, such as a bank statement or business papers, they are entitled to use them at court.  After all, if the documents reveal hidden assets, surely justice demands that they be used?

Confidential documents

The reality is more complicated. The law on using a spouse’s documents in divorce proceedings changed significantly in 2010 following a major Court of Appeal decision. Many people (and even some older online articles) still rely on outdated assumptions.

The Old Approach: The ‘Hildebrand Rules’

Before 2010, many family lawyers referred to what became known as the Hildebrand Rules (from Hildebrand v Hildebrand [1992] 1 FLR 244).

Under that approach, it was widely believed a divorcing spouse could:

• copy financial documents belonging to the other spouse

• return the originals

• still rely on the information in divorce proceedings.

However, that no longer reflects the law today.

The Modern Rule: Imerman: ‘Self-Help’ is not allowed

The law fundamentally shifted in 2010 following the Court of Appeal decision in Tchenguiz v Imerman [2010] EWCA Civ 908.

The court made clear that ‘self-help’ (that is, helping oneself to disclosure) is not permitted.  A spouse is not entitled to secretly take, copy, or retain confidential documents belonging to the other spouse, even if those documents reveal hidden assets.  Doing so may amount to breach of confidence (a civil tort) or potentially criminal offences, such as under the Computer Misuse Act 1990.

The Court of Appeal placed a greater emphasis on privacy and property rights in confidential information, making clear that even in divorce proceedings disclosure must be obtained through lawful court processes rather than self-help.

In other words: The fact that you have found a document does not mean you are entitled to use it.

What counts as a “Confidential Document”?

The key question is not simply where the document was found, but whether it carries a ‘reasonable expectation of privacy’.

Examples that will usually be confidential include:

• bank statements kept in a personal desk drawer

• documents stored in password-protected email accounts

• files on computers with individual logins

• cloud storage accounts

• business records stored on work devices.

Even documents located in the family home may still be confidential.

Some situations can be less clear. For example:

• a bank statement left openly on a kitchen table

• a document left open on a shared laptop

• papers stored in communal areas used by both spouses.

However, even in these grey areas, copying, photographing, or distributing the documents can still create legal risk.

In situations like this, the safer course is usually to raise the issue through the normal disclosure process in the proceedings (for example through questionnaires or, where necessary, applications for specific disclosure or third-party disclosure).These are the lawful tools the court expects parties to use, rather than informal “self-help”.

The Surprising Exception: Memory

One important principle recognised by the courts is that a person cannot ‘un-see’ something.

This means that even if the documents themselves cannot be used, the party may still rely on their recollection of what they saw.

The Court of Appeal addressed this in Arbili v Arbili ([2015] EWCA Civ 542).  Lady Justice Macur stated “I recognise the professional difficulties for any legal representative informed of the existence of illicitly obtained materials … but this particular topic has been traversed at some length in Imerman v Tchenguiz and others sufficiently to give an adequate indication of the steps to be taken. The unlawfully obtained materials must be returned. The recipient’s duty to make any relevant disclosure arising from them within the proceedings is triggered. The ability of the wrongdoer [i.e. the person who unlawfully viewed the documents]…to challenge the sufficiency of the disclosure, is confined to evidence of their memory of the contents of the materials but is admissible.”

So the party may presumably try to remember what they saw then:

• raise questions (in response to a Form E) about accounts they remember seeing

• identify companies or investments that were mentioned in documents

• ask questions about gaps or inconsistencies in the spouse’s financial disclosure.

However, there are limits. A person cannot rely on the contents of legally privileged material, such as communications between their spouse and their lawyer.

The Bottom Line

Family courts take financial disclosure seriously, but they also take privacy and confidentiality seriously.

If important financial information exists, there are lawful ways to bring it before the court. The key is using the proper disclosure

process, not self-help.

((C) 2026 The Private FDR Group. This article is for discussion purposes only and nothing in it constitutes legal advice. Be sure to obtain legal advice for your particular circumstances)