Family: The rise of NDAs in divorce

For some within the public eye, non-disclosure agreements (NDAs) are a necessary a part of life, defending from scrutiny info they like to stay personal. In February this yr, the Authorized Providers Board issued a report on the misuse of NDAs to hide wrongdoing, notably the place there’s a clear energy imbalance between events.

As a result of pervasiveness of social media, all of us now have a public footprint of some type or one other, and we’re more and more aware of the everlasting injury {that a} publish on Fb, Instagram or X may cause. It’s no shock, then, that individuals of all backgrounds (not simply the wealthy and well-known) are more and more searching for to guard their privateness by turning to the NDA as a repute administration software. That is as true within the context of marriage and divorce as it’s in another.

Household regulation context for NDAs

Divorce: Upon divorce, for the phrases by which a pair’s wealth is split to be legally binding in a strict sense, they need to be set out in a court docket order, achieved both by way of a negotiated settlement (maybe utilizing some technique of non-court dispute decision), or by means of imposition by a choose.

Though there may be an inherent obligation of confidentiality that applies inside monetary treatment proceedings, this solely serves to guard info disclosed therein. Accordingly, to be able to acquire extra wide-ranging protections in opposition to the disclosure of delicate info referring to the wedding, involved events could want to enter into an NDA, both as a standalone doc or as a clause (often an endeavor) inside their monetary order.  

Nuptial agreements: Pre-nuptial agreements are surging in reputation. Although nonetheless not strictly binding in England and Wales, the court docket will observe them the place they’ve been entered into correctly (that’s, with authorized recommendation and on the premise of full disclosure, inter alia), and the place the supply made for the financially weaker get together is honest and allows them to fulfill their cheap wants.

Pre- and post-nuptial agreements are a pure house for NDAs as they will govern in opposition to the publication of delicate info each throughout and following marriage.  

Data topic to an NDA

Throughout the security of a wedding, individuals are likely to share quite a lot of private and monetary info that they’d by no means intend to be disclosed extra extensively. It’s exactly this that the marital NDA seeks to guard. This could embrace:

info of a personal nature referring to the couple and their married life – equivalent to particulars about arguments, addictions, affairs, sexual proclivities or different behaviours or habits that may trigger embarrassment if made public, even when simply to household and associates;
details about the opposite’s dealings with third events – this will embrace allegations referring to inappropriate behaviour or civil disputes, in addition to their skilled/social relationships; and
monetary info – persons are usually involved that particulars of their personal funds will not be made public. This may occasionally additionally embrace commercially delicate details about their companies or employers that their partner has develop into aware of throughout the marriage (maybe not legitimately so), and which may have severe skilled penalties if it had been made public.

The ‘off-the-shelf’ NDA will outline the confidential info it seeks to guard fairly broadly. However clear areas of concern might be referred to very particularly and in appreciable element, in order that there is no such thing as a ambiguity as to their protected standing.

Publication of Household Court docket judgments

One associated level to think about is that there has lately been a shift within the Household Court docket (notably amongst sure Excessive Court docket judges) in the direction of judgments being printed on a non-anonymised foundation. That is an evolving space, however a marital NDA can require that each events request that the court docket (if in proceedings) anonymises any judgments it chooses to report on, and units clear restrictions for any press involvement. Though this is not going to bind a choose, it might affect their resolution making.

Advantages and disadvantages

The settlement of an NDA comes at a monetary value (when it comes to authorized charges) and it might additionally alert the particular person being requested to signal an NDA to the truth that they’ve extra bargaining energy than they may in any other case have thought.

Good authorized recommendation and a strategic strategy are essential. For the particular person being requested to signal the NDA, the request might be taken negatively, notably when the difficulty they’re being requested to maintain confidential could also be a key cause for the connection breaking down. A superb lawyer can help the particular person being requested to signal the NDA by guaranteeing that particular persons are carved out of disclosure/publication prohibitions. They will additionally be sure that the particular person can communicate to their help community and advisers. The lawyer performing for the get together searching for the NDA may also help set issues up for fulfillment by pondering by means of what the potential objections could also be and providing options.

The place there’s a breach of an NDA, there are numerous strategies of enforcement accessible, together with for contempt of court docket the place an endeavor has not been adopted. Nevertheless, relying on the tactic of enforcement, it’s potential that any resultant court docket proceedings might be held in public and might be absolutely reported on. A holistic view of the general deserves of enforcement must be taken and the involvement of a PR adviser might be smart to make sure all related issues are factored in.

Alex Brereton is a accomplice and Eri Horrocks a senior affiliate at Hunters, London