For high profile individuals it can be both distressing and potentially damaging to have their private affairs splashed across the media.
With a divorce in particular, there will often be highly personal information, which clients would not want to be shared publicly. A messy divorce played out in the full glare of the media, subject to extensive public commentary, can be an unwelcome distraction, which can impact on the focus and discipline needed for sportspeople to continue excelling in their field.
What can be made public?
Court rules state that family law cases which are being decided for the first time (i.e., not appeals) should be heard ‘in private’. Historically, this was interpreted in such a way that the spouses involved could have certainty that they would be able to keep their personal affairs confidential when going to court regarding their divorce and finances.
However, over the last 15 years there has been a significant shift away from this interpretation, and a view that ‘in private’ should not mean that hearings are dealt with ‘in secret’. There has been a move towards openness and transparency within the Family Courts. This primarily started with the media being able to attend most Family Court hearings from 2009 onwards. However, those pioneering the move towards more openness remained critical, believing that allowing the media into court but restricting them from reporting the decisions gave ‘only a mere illusion of transparency’.
In 2014 a Practice Guidance was issued by the then President of the Family Division on the issue of transparency and the publication of judgments. It noted a need for greater transparency in order to improve public understanding of the court process and confidence in the court system.
Since the Guidance was issued, one senior Judge in particular, Mr Justice Holman, has championed a move towards more openness. From 2014 onwards he decided that he would hear all of his cases in public, in open court, subject to a few limited exceptions. The exceptions included certain cases regarding children and those sections of court hearings which discussed confidential information that could affect the share price of a publicly quoted company.
In his case of Fields v Fields in 2015, Mr Justice Holman acknowledged that the decision to deal with the financial case arising from that couple’s divorce publicly had led to considerable coverage in newspapers and online, and that this had caused them distress. However, he stated that whilst he regretted their distress it did not outweigh the importance of court proceedings being open and transparent, as far as possible.
Other judges are now taking a similar approach. In the case of Gallagher v Gallagher in 2022 Mr Justice Mostyn refused a husband’s application for either an anonymity order or reporting restrictions, in a financial divorce case, saying that he now completely agreed with Mr Justice Holman’s insistence on true transparency. He decided that only the names of the children and their school should be anonymised in his judgment, and only certain pieces of financial matters should not be reported. Mr Justice Mostyn accepted that this ‘application of the rule of open justice’ could result in distress and embarrassment to the litigating parties, but felt it was the ‘price that has to be paid’ in order to guarantee civil liberties and to give effect to the rule of law.
Mr Justice Mostyn did not go quite as far as Mr Justice Holman, as he did not accept that all cases should be held in open court. He did however take the view that having private hearings, which authorised media can attend (with some limited exceptions) and publishing the judgments made at those hearings provide the transparency needed.
It is clear from the approaches of these highly influential and senior judges, that we can expect more and more financial applications in divorce cases to become public knowledge. This will particularly be the case where the cases concern high net worth individuals which are dealt with by senior judges. There is a risk that hearings could be held in open court with the public able to attend. Even if that can be avoided it is becoming more and more likely that the media will attend and will be able to report details of the information they hear at court, and the decisions made by a Judge.
How do you avoid publicity?
There are applications that can be made to the court for anonymisation of judgments, or orders limiting what the media can report. However, to avoid any risks the best option is to avoid court all together. These are some of the ways that this can be done:-
- Arbitration - Arbitration is a form of dispute resolution outside of court, where a couple can agree to appoint an arbitrator to adjudicate their separation. The arbitrator will consider the case in a similar way to a judge and will make a binding decision, known as an award.
- Collaborative family law - Under the collaborative process, each person appoints their own collaboratively-trained lawyer. The couple and their lawyers then have a series of face-to-face negotiation meetings to reach an agreed settlement.
- Private hearings – even if a couple are in court proceedings, they can choose to have negotiation hearings dealt with by an agreed qualified professional who can dedicate more time and input to them than a Judge typically could at court. This can often increase the likelihood of settling a case by agreement without the need for a contested final hearing.
- Lawyer-assisted mediation – mediation is commonly used to assist couples in reaching an agreement following a separation. The mediator is a neutral facilitator of those discussions. It is also possible to have lawyer-assisted mediation, where your lawyer can join you within the mediation sessions.
If any sportspeople find themselves dealing with a separation or divorce, it is vital that the issue of publicity and confidentiality is considered at an early stage. If you need any support with any of the issues discussed, please contact our Family Team.
