When going through a divorce, the last thing you need is the added anxiety of private details of family disputes and finances being laid bare in open court for all to see and reported by the press. Richard Hogwood and Toby Atkinson, Partners in the Divorce and Family Department at Stewarts, spoke with Cavendish Family Office about the impact that recent reforms to the legal system in England and Wales will have on divorcing couples’ privacy (or lack thereof).
What has changed?
Broadly speaking, both financial and children’s proceedings have historically been held in private. This has meant that the only people allowed into court are the parties themselves, their lawyers, and the judge. Members of the public are excluded and, although accredited members of the press have been able to attend some hearings in financial proceedings, there have been strict limitations as to what documents they may see and what they have been allowed to report.
Change, however, is afoot. In October 2021, The President of the Family Division, Sir Andrew McFarlane, published his report entitled ‘Confidence and Confidentiality: Transparency in the Family Court’, in which he encouraged family judges to start publishing more of their judgments. He recommended that the “time had come” for accredited media representatives and legal bloggers to be able to report publicly on what they see and hear when attending Family Court hearings.
One upshot of this has been the increased propensity for judgments in financial proceedings to no longer be anonymised (except in relation to identifying any children).
In January 2023, a pilot scheme was launched in the Family Courts in Cardiff, Leeds, and Carlisle, enabling greater reporting of children’s cases. The pilot, which will initially cover public law cases before being extended to private law cases, will run for 12 months. Under the scheme, it is no longer necessary for accredited journalists to apply for and be granted permission to publish information from the courts taking part, although strict anonymity will be maintained. This represents another important shift towards more openness and transparency in the Family Courts.
What impact will these changes have on divorcing couples?
The acceleration towards transparency and open court is significant. In short, the Family Court is no longer a guaranteed private forum for resolving disputes between divorcing couples and this is already influencing the decision of many couples as to how they choose to resolve their financial disputes.
We have acted for a number of clients over the past few years who have elected, for example, to ‘go private’ and attend arbitration instead, thereby ensuring that details of their divorce and finances will not be reported by the media.
We also regularly act for clients who have been able to reach an agreement with their partner at a voluntary private settlement hearing (see below).
What options are available to divorcing couples seeking privacy?
There are many options separating couples can choose from to resolve disputes outside of the court process and thereby avoid unwanted press and media intrusion, the four most commonly used being:
Mediation can be used in any family dispute and in almost all situations. It is a voluntary and confidential process overseen by an independent third party whose role is to assist couples to reach an agreement, as opposed to imposing a decision on them. A mediator does not give legal advice but helps the parties ascertain and work through the issues between them, facilitating those discussions as a neutral third party. All discussions are on a without prejudice basis, which means they cannot be disclosed outside of the mediation process.
2. Collaborative law
This is a forum for settlement facilitated by collaboratively trained lawyers. The process involves face-to-face negotiation meetings with both parties and their lawyers present. The cornerstone of the process relies on complete transparency and trust that each side is acting in good faith, as well as meaningful engagement in the process. If the parties cannot reach a full and final settlement, the process breaks down. A key feature of the collaborative law process is that, where a party subsequently issues financial proceedings, the parties must dis-instruct their lawyers and find alternative legal representation. There is therefore a strong incentive for an agreement to be reached.
This is a private process that mimics the structure of the court process. The parties appoint a mutually chosen arbitrator who will act as the ‘judge’. Evidence is given by both parties, with each side putting their case forward as to how matters should be resolved. At the end of the arbitration, the arbitrator will deliver a binding determination (akin to a court judgment, save with the guarantee it will be kept private).
4. Private FDRs
A private financial dispute resolution (pFDR) hearing is a process whereby the parties choose a specialist judge whose purpose is to listen to each party’s submissions as regards the division of finances on divorce and provide an indication of the likely outcome at a final hearing. The judge’s recommendation is not binding but becomes a starting point for the parties to negotiate and narrow the issues between them. As with a court-based FDR hearing, the pFDR hearing is heard on a without prejudice basis. They are a highly successful form of dispute resolution.
What are the benefits of an alternative dispute resolution (‘ADR’)?
The court process can be a very blunt and daunting environment in which to deal with a dispute and often serves only to increase tensions between the parties. With the added risk of press and media intrusion, it is no surprise that we have seen many couples, particularly from high-net-worth families and those in the public eye, favouring ADR instead.
In our experience, ADR is often really empowering for individuals. It allows personal priorities to be set and provides for a bespoke approach both in relation to how the issues are going to be solved and what the solution will look like. ADR will usually provide the quickest route through a dispute for a separating family.
Contingent on the specific facts of the matter, we will usually encourage our clients to start their discussions within an alternative dispute resolution process. Couples contemplating divorce should seek legal advice at an early stage and seek to gain a full picture of the options that are available to them in order to make a fully informed decision as to the forum which would be most suitable for their needs.
How do you know which approach is right for you?
It is important to ask plenty of questions and to explore with your lawyer which option may be best suited to your circumstances. It is paramount that clients obtain a clear understanding as to all the options available to them, and how those processes work, so that they can make an informed decision as to how they would like to proceed.
This article is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
As can be seen from the answers above, information sharing around a divorce is a complex subject both legally and emotionally. While there are ways to mitigate the impact of the recent changes, these require careful deliberation and for both parties to agree to them. If you require legal orientation and support on this subject, please do get in touch, we would be happy to help.
You can find further information regarding our expertise, experience and team on our Divorce and Family pages.
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