Can a husband obtain an injunction preventing his ex-wife from disclosing confidential information obtained during their marriage?

British Columbia, Canada

The following excerpt is from L.(M.S.) v. G.(H.R.), 2005 BCSC 488 (CanLII):

In Duchess of Argyll v. Duke of Argyll et al. [1967] Ch. D. 302 with respect to divorced parties the court enjoined the defendant from disclosing certain information of a confidential nature imparted to him during the marriage by his ex-wife. The headnote contains the following passages: (1) that a contract or obligation of confidence need not be expressed, but could be implied, and a breach of contract or trust or faith could arise independently of any right of property or contract (other than any contract which the imparting of the confidence might itself create); and that the court, in the exercise of its equitable jurisdiction, would restrain a breach of confidence independently of any right at law…. (2) That, with the object of preserving the marital relationship, it was the policy of the law that communications, not limited to business matters, between husband and wife should be protected against breaches of confidence (post, pp. 329F–330A), so that, where the court recognised that such communications were confidential and that there was a danger of their publication within the mischief which it was the policy of the law to avoid, it would interfere; and that, on the facts, publication of some of the passages complained of would be in breach of marital confidence… (3) That, it being the policy of the law to preserve the close confidence and mutual trust between husband and wife, subsequent adultery by one spouse resulting in divorce did not relieve the other spouse from the obligation to preserve their earlier confidences (post, p. 332G). Accordingly, the plaintiff’s adultery did not entitle the first defendant to publish the confidences of their married life, and an injunction would be granted restraining him from so doing.

However, it is submitted that the court should not grant a remedy for a breach of confidence relating to matters which have a grossly immoral tendency. The case of Stephens v. Avery [1988] All E.R. 477, (Ch. D.) is referred to. However, in dealing with that submission the court in that case said the following at page 480: I entirely accept the principle stated in that case, the principle being that a court of equity will not enforce copyright, and presumably also will not enforce a duty of confidence, relating to matters which have a grossly immoral tendency. But at the present day the difficulty is to identify what sexual conduct is to be treated as grossly immoral. In 1915 there was a code of sexual morals accepted by the overwhelming majority of society. A judge could therefore stigmatise certain sexual conduct as offending that moral code. But at the present day no such general code exists. There is no common view that sexual conduct of any kind between consenting adults is grossly immoral. And further: If it is right that there is now no generally accepted code of sexual morality applying to this case, it would be quite wrong in my judgment for any judge to apply his own personal moral views, however strongly held, in deciding the legal rights of the parties. The court’s function is to apply the law, not personal prejudice. Only in a case where there is still a generally accepted moral code can the court refuse to enforce rights in such a way as to offend that generally accepted code.

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