Should you have an NDA when getting divorced?

If you’re going through the divorce process, your most intimate and sensitive information must be disclosed — particularly when it comes to your financial circumstances. While NDAs (or Confidentiality Agreements) are commonplace in sensitive commercial situations, they also appear during divorces that involve high-profile individuals or sensitive personal information.

Here, Amy Harris explores the rise in NDAs for divorce proceedings and what they’re typically used for.

What are the key factors behind NDAs in divorce agreements?

Greater transparency in family law proceedings

Over the last few years there has been a move towards greater transparency within family proceedings. The rules have been relaxed on media attendance and reporting — particularly in financial settlement cases. 

Naturally, this has sparked concern among those going through the divorce process about what information may end up in the public domain — undoubtedly contributing to the increased interest in NDAs.

High-profile divorce proceedings

Adding fuel to the fire are recent, high-profile separations — such as that between Johnny Depp and Amber Heard — which have shown how private disputes can end up in the public sphere. 

Indeed, NDAs have historically been more common in the US and global influencer culture and trend-setting celebrities are stimulating awareness and demand for them.

While most people who divorce won’t end up in court with the world pouring over the finer details of where their relationship went wrong, this is likely to have made some people think twice about how transparent they are — even with their nearest and dearest. 

Controlling the narrative

Another aspect of this is a desire to control the narrative. When it comes to divorce, the ‘PR’ battle between some couples to win over friends and family is nothing new. However, the increased awareness of tools such as NDAs to tip the scale certainly is.

Are NDAs necessary in divorce proceedings?

The rules surrounding privacy within family law proceedings already dictate what can or can’t be disclosed. Breaching those rules can have serious consequences, so it won’t always be necessary to have an NDA or Confidentiality Agreement in place. 

There’s also an implied undertaking of confidentiality when financial disclosure is given as part of a divorce and the European Convention of Human Rights supports the right to privacy. 

If the divorce is taking place within contested financial remedy proceedings, those will generally be held in private — although, as mentioned, there are increasing drives towards transparency within the family justice system.

If confidentiality is a concern, thought should be given to seeking written agreement from the other person not to disclose information received as part of the divorce process (or to treat such information as confidential). 

However, there will be some circumstances where an NDA may be advisable. Any breach of an NDA or confidentiality agreement could be enforced by a court and an injunction could be granted to prevent further disclosure. It’s worth noting that this is likely to be a costly application and it may come too late if the information has already been disseminated. 

The unlawful disclosure of confidential information can also result in court proceedings — and in some circumstances, the disclosure of confidential information received as part of a divorce could be a contempt of court, which may be treated as a criminal offence.

Social media & confidentiality clauses

With the rise of social media, we’re seeing ever more agreements that cover what can and can’t be shared via social platforms about a separation. For couples with a social media presence — whether it’s high-profile or not — it’s important to think about the sharing of private information from the very start of a relationship.

Pre- and post-nuptial agreements (prenups and postnups) can include confidentiality clauses to limit the sharing of information received during a marriage. These could, for example, agree to how photos of children are used on social media. In such a case, an NDA might be more palatable when used in conjunction with a prenup at the start of a marriage, rather than seeking to impose one after separation.

NDAs used for domestic abuse, coercion & control

Of course, there are always some concerning cases where NDAs are used as an attempt to continue control as part of an abusive relationship or to hide abuse itself. 

The Government recently passed the Victims and Prisoners Act, which aims to prevent the use of NDAs as a barrier to victims reporting sexual assault, harassment or accessing support. While this is a step in the right direction, it’s important that anyone considering entering into an NDA fully understands the implications of doing so as well as their options and legal rights.

Talk to us

If you’re considering using an NDA as part of your relationship, marriage or divorce — or if you’re faced with or have signed an NDA — our award-winning family law team is here to advise you on your legal rights and best course of action.

Talk to us by giving us a call on 0333 004 4488, sending us an email at family@brabners.com or completing our contact form below.