Many couples wish to keep their financial affairs private during the divorce process. When Angelina Jolie and Brad Pitt found themselves on the receiving end of negative publicity they quickly engaged a private judge to deal with all aspects of their divorce – away from the media spotlight. This option is not usually open to individuals in England and Wales – no matter how high their profile or net worth. The desire for privacy is understandable. It is simply not always achievable. But sometimes the thought of negative or simply intrusive publicity can focus minds and lead more readily to a negotiated agreement.
The rules relating to the reporting of financial remedy hearings have long been the subject of debate. Judges, family lawyers and campaigners continue to weigh up the competing principles of open justice and an individual’s right to privacy. The result is a certain lack of clarity in relation to what financial details may or may not find their way into the public domain.
Recent Decisions On Financial Privacy
Already in 2017 there have been two key decisions in this area. In January the Court of Appeal rejected divorcee Tina Norman’s application for the retention of existing reporting restrictions surrounding her financial claims against her ex-husband.
Ms Norman had argued that national press reports following earlier hearings had resulted in her being the subject of ‘scathing personal criticism’. In its judgment the court reiterated the current position:
- Hearings will take place in public
- The parties will be named
- The hearing and any consequential judgment may be reported – unless there are cogent reasons why the court thinks it right to depart from that position.
In this case the media’s right to freedom of expression and the principle of open justice outweighed Ms Norman’s right to privacy. The court pointed out that:
- Ms. Norman’s case is that her husband allegedly repeatedly and dishonestly failed to disclose assets. The court ruled that any reporting of these proceedings would involve very little intrusion on, or interference with, her reasonable expectations of privacy.
- The issue at stake – whether a former wife should be entitled to claim continued spousal maintenance and not be required to go back to work – is an issue that merits public debate.
Some observers have also suggested that the decision may have been influenced by the fact that there were no minor children involved.
Almost simultaneously, footballer Ryan Giggs succeeded in obtaining what the press reported as a ‘gagging order’ in respect of the financial settlement he is currently negotiating with his wife. The order prohibited the media from publishing or broadcasting any report “that refers to or concerns any of the parties’ financial information”. Initially Mr Giggs had attempted to exclude the press from the court hearings entirely but chose to withdrew that application.
Transparency v Privacy – The Debate Continues
The champion of greater transparency in the family courts, including financial hearings is Sir James Munby. Following extensive consultation with lawyers in Australia, where family courts have been held in open hearings for the last 30 years, he has called for greater openness, arguing that “the public has a legitimate interest in being able to read what is being done by the judges in its name”.
On the other hand there are judges like Mr Justice Mostyn who regard financial hearings as “quintessentially private business’ and have called for the privacy of the parties to be fiercely protected.
Is it right to hold the threat of unwanted publicity over divorcing couples? Divergent views of leading judges mean that whether or not a case will be publicised might be something of a lottery. It is why so many family lawyers and campaign groups are seeking further clarity on the issue.
Of course one way to avoid publicity completely is to take the matter out of the courts’ hands and resolve matters through arbitration or mediation. Although this is only really effective when both parties are constructive in approach and do not use the process as a way of spinning matters out needlessly.