What level of detail should be disclosed about individual divorce proceedings – including financial remedy proceedings? It’s an issue that has exercised family lawyers and lawmakers for decades. Would publication of highly sensitive financial matters for example help build public trust in the family law system? (The thinking is that openness will lead to a greater understanding of how divorce settlements are reached.) Or does the privacy of individuals who turn to the family courts to resolve financial and other disagreements trump the goal of greater transparency?
At the end of 2021 one leading family law judge published a keenly anticipated report advocating much greater openness in the family courts. We look at the details of the report below, and we consider the implications for divorcing couples of a move toward disclosure of their personal information in the course of divorce proceedings.
What Information Can Be Disclosed Publicly About My Divorce?
The Family Procedure Rules 2010 indicate that all family proceedings must be heard in private. This includes divorce proceedings although a judge can open up the proceedings in certain circumstances. Notwithstanding the privacy rule, certain categories of people are allowed to attend private hearings, including ‘duly accredited representatives of news gathering and reporting organisations’. Even when they attend however, reporters are prohibited from reporting proceedings that relate to children. And, while there is no absolute bar on reporting financial information in a case where no children are involved, in practice the courts restrict publication of confidential financial information. Judges derive their power to curtail publicity from a long line of decided financial cases.
Opening Up Family Proceedings To A Wider Audience
In late 2021, the President of the Family Division of the High Court published a detailed report, Confidence and Confidentiality: Transparency In The Family Courts. It dealt extensively with how family proceedings involving children should be reported. It concluded that it was time for accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear. The president was firmly of the view that the limited number of family court cases that actually reach the public domain is so insignificant that it effectively harms public confidence in the system. Crucially while reporters and bloggers will have more access to the courts in order to report proceedings, the overriding need to keep details of children anonymous will remain.
What About Financial Proceedings?
Alongside the wider report about family proceedings generally, the family judges in charge of administering financial remedy proceedings also published proposals aimed at widening the reporting of financial proceedings.
Details of financial proceedings can be reported presently but transparency is undermined for three reasons:
- As we have seen children cannot be named and schools can’t be identified
- Where one party divulges financial information because the court compels it to, that information can’t be disclosed publicly without the court’s permission
- Journalists and bloggers can’t see any financial documents such as bank statements without first asking the court. All financial remedy cases are heavily document-based. Without first-hand access to the material, reporters have huge difficult in understanding what financial cases are really about. It means that, while they can attend hearings, the effectiveness of any report is severely limited
Those behind the report propose a reporting permission order that would be standard in financial proceedings, which will relax the current restrictions. The standard order would enable journalists to have sight of crucial financial details that would previously have been protected. The aim is still to protect privacy but to allow journalists access to enough information to enable them to fully understand how a particular decision is reached and to impart this understanding to the wider public.
Going It Alone: Divorcing Outside The Court System
There are many reasons to welcome greater transparency in the family courts – highlighted in the Confidence and Confidentiality report. Mistrust in the system can be largely attributed to the perception that everything is done’ behind closed doors’.
At the same time any move toward making it easier to publish financial details is bound to have a significant impact on our clients. At Brookman for example our UK-based and international clients are often high net worth individuals. Many are in the public eye. Their preference is to keep sensitive details about their finances as private as possible throughout the process.
So what can people do when keeping financial and other details private is an absolute priority?
Engaging a specialist arbitrator on a private basis is one solution. We’ve already seen how individuals are increasingly resorting to alternative dispute resolution methods like mediation and arbitration – drawn in large part by the private nature of these types of proceedings. The attractiveness of arbitration in particular was enhanced by the 2021 decision in A v A where the Court of Appeal clarified how to challenge, enforce or confirm an arbitrator’s decision within the family law system.
If you would like advice on any of the issues we’ve raised please call Brookman Solicitors on 44 (0) 20 7430 8470 or contact us online. We offer a free, initial consultation.