Defamation and family law

When a couple separate it can be challenging for them to adapt to new, independent and separate lives.

There may also be a variety of complicated reasons why that separation took place including adultery, domestic abuse or a breakdown in communication.

Family lawyers are often contacted by clients to assist with separation, whether a couple have been married or in a civil partnership or where they have been living with a partner. Sometimes we will assist clients with a divorce, or dissolution of a civil partnership. Other times there may be a dispute regarding property, children or a person’s behaviour.

When you are in a relationship with someone the main remedies available to address a person’s behaviour can be found in the Family Law Act 1996. These include a non-molestation order and occupation order.

• A non-molestation order prohibits a person associated with the applicant from “molesting” them or a child. Molestation isn’t defined in law but can include threats, harassment or violence.
• An occupation order can be used alongside a non-molestation order or separately to exclude a person from a property in order to protect the applicant or a child.

Occasionally, following a difficult separation, especially where there has been a breakdown in communication, a couple may be concerned about certain things their former partner may be publishing online, or saying about them to family, friends, colleagues, work contacts or other third parties. This could include spreading statements which may have a real impact upon the person who is the subject of such comments. This may lead clients to consider whether it might be appropriate to consider defamation or other forms of civil proceedings instead of, or in addition to, family law proceedings.

A personal claim for defamation involves the publishing of a statement which lowers the individual in the estimation of right-thinking members of society generally. Broadly, the test is whether a statement would cause one to think less of the person to whom it refers. A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant and this can often be a significant obstacle in any defamation claim. Defences may be based on truth, public interest, privilege or honest opinion.

Being defamed, bringing a successful defamation claim, and repairing your reputation, can often be principles which are separate and distinct from one another, and they should be weighed up individually, particularly where private events involving a personal relationship are likely to be the focal point of any legal proceedings.

It is important to carefully consider the interplay between family law proceedings and any steps that might be taken in connection with a defamation claim to avoid interfering with any strategy or objective in the divorce proceedings, for example.

There is a limited time in which to bring a defamation claim, which will be one year from the date of publication; therefore, seeking urgent advice is essential. Defamation proceedings can also be costly and take several years to be resolved.

In considering what remedies are available following separation to address your partner’s behaviour, it is important that there is a “joined up” approach between the lawyers considering both family law and civil remedies that might be available.

For further advice please speak to family lawyer Amy Harris or litigation lawyer Jamie Hurworth.