Dirty laundry and divorce – is there an alternative?

Divorce|September 22nd 2015

It’s a truism that divorce is difficult. Acrimony and arguments, confused and teary children, financial strain, emotional upheaval – the list goes on and on. But there is yet another potential but often forgotten source of strain and stress: if you and ex find yourselves at loggerheads over money in court, you could end up in the newspapers.

There is actually no hard and fast rule regarding the reporting of financial remedy proceedings. Common law starts from the presumption that justice should be done in public – open courts are the default setting of the English legal system. Reporting a case is only wrong if doing so would be in breach of judicial instructions and legal orders made for a particular case.

Rule 27.10(1) of the Family Procedure Rules 2010 does state “…Proceedings to which these rules apply will be held in private”, but this does not mean, as it may seem, that divorce hearings are automatically held in private. In fact, the same principle applies: reporting restrictions and privacy must be justified on a case-by-case basis.

Family court Judges may or may not make such rulings, depending on the circumstances of the couple in question. If, for example, there is good reason to believe that open reporting of financial remedy proceedings could cause emotional harm to the couple’s children, or could reveal confidential business information, then it would not be unreasonable for the divorcing couple to request privacy.

That would not apply to most divorces – but then most divorces are utterly mundane and unlikely to excite much press interest anyway.

It may surprise you to learn that Judges very different approaches to this issue. Mr Justice Mostyn, for one, is known to prefer privacy. In the recently reported published case DL v SL, for example, he forbade the media from identifying any of the parties involved, or from publishing financial information unless the latter was already in the public domain, declaring:

“It is my opinion that the law concerning the presence of the media in these private proceedings … is to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them.”

As John Bolch has already noted here, the message behind the Judge’s words is clear: the media has only a limited role in the divorce court. It can educate the public on the workings of the law, but the privacy of the people involved must come first.

He openly admits in his judgement however, that other members of the judiciary take a different view:

“No-one has greater admiration for the wisdom and skill of Mr Justice Holman than me but with great deference to him I cannot agree with his practice of ordering … that every ancillary relief case listed before him should be heard in open court.”

So with such senior Judges taking dramatically differing views on privacy, what can you do if your contentious divorce is likely to excite the interest of the media? Can you eliminate the uncertainty and ensure privacy? If clients approached me with this particular concern, then I would have one very clear recommendation to make: arbitration.

My enthusiasm for arbitration will be no secret to regular readers. Ever since I became one of the first qualified family law arbitrators in the country back in 2012, I have been vocal about the many benefits. Essentially mediation on steroids, arbitration offers the certainty of a legally binding ruling and the reassurance of fully legally qualified arbitrator: a number of very senior but now retired judges, including the legendary Lord Justice Thorpe, now sit as arbitrators.

And most importantly for our topic today, as a private process arbitration is completely confidential. It’s the obvious solution for unhappy divorcing couples who need legal rigor but who would also prefer to keep their names out of the papers.

Of course, sometimes publicity is the point. No matter how much one party may desire privacy, their rancorous ex may refuse arbitration because they want their day in their spotlight and their photos on the front pages. The unpalatable truth is that sometimes the courts are used as a weapon.

Read DL v SL here.

Author: Stowe Family Law

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