• 17th February 2016

We expect a certain entitlement to privacy in this country. This is enshrined and supported by Article 8 of the European Convention on Human Rights which states:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Marriage itself though is not private. It must take place in a public building, notice must be given and witnesses must be present. Beyond that, however, no one else is entitled to know the details of how you and your spouse conduct you marriage unless, that is, you choose to divulge them or you live out your private life in the public sphere.

Divorce also requires a certain amount of publicity. Court proceedings must be started and the marriage is brought to an end first by the grant of decree nisi and finally by the granting of a decree absolute at least six weeks later. Information on the making of these orders is available to the public. The procedural side of a divorce is seldom contentious with court proceedings relating to the division of finances being more problematic and antagonistic .

Such proceedings require a comprehensive and invasive look into the financial lives of both parties. The standard of disclosure is high. The Court requires a full, frank and honest picture of the parties economic life to be able to adjudicate on a fair outcome. The standard format to provide this disclosure is known as a Form E which runs to 28 pages and requires documents to be attached which include recent payslips, banks statements and pension information.

In order to protect the parties’ right to privacy, family proceedings relating to finances are heard in private but there are circumstances in which they may be opened up. These were considered by Mr Justice Mostyn last year in Appleton & Gallagher v News Group Newspapers and PA [2015] EWHC 2689 (Fam).

The case related to the financial proceedings in the divorce of Nicole Appleton and Liam Gallagher in which they jointly made aplication to exclude the press from the financial proceedings. There was a great deal of public interest in their divorce due to their celebrity status. Mostyn J reviewed the legal position and frame work for considering when the press should be allowed access to such proceedings and, if so, to what extent.

The legal position is found in Family Proceedure Rule 27.11 which states that all hearings are held in private, this prevents the public from attending. FPR 27.11(2) provide a list of who may be present at these private hearings, which includes “duly accredited representatives of [the press]”. It should be noted that the court also has the power to exclude any member of the press, or indeed anyone else, if it sees fit (FPR 27.11(3)). In the case of most divorces the press will have little interest in attending a hearing but when celebrities divorce the case is very different.

The press are also limited as to how they report the case. It is a contempt of court if they repeat outside of court anything that is said before the court. This applies to the parties as well. The press are also not allowed access to the documents. So the parties can be assured that jouranlists will not be able to go through their bank statements. Indeed, Mostyn J commented that when the press is allowed to attend a hearing, their presence is more akin to that of an observer or watchdog.

What then of the judgement itself? Matrimonial judgments do not have to be made public by virture of the Judicial Proceedings (Regulation of Reports) Act 1926. Such judgments can contain a great deal of personal information and would undoubtedly be an invasive breach of the right to privacy of the parties.

In such cases the court will be required to balance the parties’ right to privacy against the right of freedom of expression. In family proceedings a great deal of weight is given to the right of privacy but this can be countered where one or both parties have acted with iniquity and sought to use the press to their advantage, or where there already exists a great deal of information in circulation about the case, perhaps from previous proceedings.

These issues do not just apply to celebrities. Shortly after his decision judgment in Appleton & Gallagher, Mostyn J made public a judgment in financial proceedings which involved no element of celebrity and no information about the case was already in circulation. The case of Veluppillai & Others v Veluppillai [2015] EWHC 3095 (Fam) involved a husband who was a litigant in person and whose conduct throughout the case had been particularly bad. At paragraph 17 of his judgement he:

There is no doubt the husband’s misconduct has been at the extreme end of the spectrum. It is in the public interest for his conduct to be exposed. The public should be aware of the scale of problems that courts administering justice and implementing the rule of law have to face at the hands of unrepresented and malevolent litigants determined to do everything they can to destroy the process. I appreciate that the wife, who is wholly innocent, will lose her rights to privacy by virtue of this judgment being published without anonymisation but in my opinion the public interest in the whole truth being known outweighs her privacy rights.”

This shows that, when considering whether or not to publish a judgment, the balancing act is not just between the right to privacy and freedom of expression but also extends to the public interest and can be applied to any case being considered by the courts. Different approaches between different judges add to the uncertainty and highlight the benefit of avoiding a final hearing if at all possible.

So what can you do if you are a facing proceedings in the Family Court and you want to ensure that your priate life remains private?

A lot will turn on what information is already available to the public, so if you can limit this from an early stage then you reduce the likelihood that other information will be made public.  In the Appleton & Gallagher case Mostyn J concluded that, as the parties were well known and it was known that they were getting divorced and attending financial remedy proceedings, there should be no restriction on reporting those facts.

Another significant factor is the conduct of the parties. You may not have much control over the actions of your soon-to-be-former spouse but if you disclose details of your divorce to the press or seek to use the press to your advantage then you risk the proceedings being made public. Mostyn J found that neither Nicole Appleton or Liam Gallager had acted in such a manner and so he allowed the restriction on reporting their finaincial information to continue with the exception of information which was already in the public domain. He left the decision as the whether the final judgment should be made public to the trial judge.

There are other ways to ensure that your matrimonial proceedings remain private. You could try to avoid a hearing altogether and to settle matters outside of court. There are alternative options available to couples which include mediation, collaborative law or sensible negotiations through solicitors (sometimes called ‘round table meetings’). Since 2012 arbitration has also been available in financial proceedings. Arbitration is essentially a private adjudication before an agreed arbitrator who will hear the case (or some specific aspect of the case) and make a decision which the parties had agreed to be bound by. This could be very useful for high profile couples who are unable to reach an agreement between themselves but who want to achieve a swift settlement without the need to attend court and risk having their marital problems and financial affairs aired in public.

If you would like more information on family arbitration, or any other family law issue, please feel free to contact the family law team on 0207 395 4870 or at family@springlaw.co.uk