Protecting Your Privacy and Reputation During Divorce

Divorce, separation and disputes over children are sensitive matters. Against a backdrop of increasing transparency in the family courts, we often need to consider our clients’ privacy and reputation. Our specialist Family and Reputation Management teams have a long history of collaboration, allowing us to navigate the crossover between these areas while protecting what matters most to you.
 

Privacy and confidentiality are often a significant concern for those in the public eye, and this can be a central issue in negotiations of nuptial agreements before or after marriage, or when attempting to reach a financial settlement on divorce. Confidentiality clauses or non-disclosure agreements are increasingly used, and we often assist clients with drafting or negotiating these to strike the right balance and ensure any concerns are addressed.

In the context of relationship breakdown, urgent action is sometimes required to protect a person’s privacy. Increasingly, our clients are finding themselves in difficult situations where a former partner has obtained financial or commercially sensitive information, or is threatening to share intimate photographs or personal details with friends, employers or even the press. Social media has become a significant risk area for many, especially those with a substantial following, and our cross-practice approach to these issues enables us to provide holistic advice, bespoke to your situation.

We can also help to keep family proceedings out of court. Family disputes amongst famous or high net worth individuals are now widely reported by mainstream media and for those who are the subject of this attention, having details of an immensely personal issue publicised in this way inevitably heightens the distress. With the increasing drive for enhanced transparency in the family court, the media will be able to attend hearings and report on what they see, hear and read in court documents, more than they ever have before.

If you are concerned about media attention around your divorce, it is crucial that you obtain advice early on. We can provide strategic and practical guidance, including using non-court dispute resolution, such as mediation and arbitration, to maintain your privacy while we assist with bringing your divorce to a conclusion. We work closely with our Reputation Management team, which has a wealth of experience in managing press attention and issues around publication, including defamation, privacy and data protection.

We also frequently advise clients who have been tracked or bugged without their consent; where their information has been misused; or where embarrassing or harmful information has been posted online. In disputes regarding children, we are seeing the use of covert recordings as evidence more and more. We understand the sensitivities of these situations, and we can advise on the urgent steps which can be taken to protect you.

Our Family and Reputation Management lawyers also work closely with our Criminal Litigation team and can assist in circumstances of blackmail and harassment. Our cross-practice approach allows to manage whatever situation in which you may find yourself, and assist you in navigating the family, civil and criminal court systems.

Frequently Asked Questions

Can a divorce be kept private?

In recent years, most family court hearings have been heard in private, which meant that the only people in the courtroom were the parties themselves, their lawyers, and the judge. Accredited media representatives have been able to attend certain hearings, but they were only able to see very limited documents and the reporting restrictions were tight. Judgments were also usually anonymous.

The rules and approach towards privacy and transparency in the family court are currently under review and a number of proposals have recently been made, including to reverse the starting position to allow the media to report more widely on divorce and financial proceedings. It is possible that the media will be given greater access to court documents, and be able to quote in their reports from what they read and hear in court. It has however been suggested that anonymisation will remain the norm, so parties will likely not be named, and the protection of the identities of children will also continue to be a key priority. The implementation of these proposals has yet to take place but a pilot is underway in a small number of local courts.

There are a number of ways that a family dispute can be resolved outside of the court process, and crucially these can be private. Many of our clients are already now considering some of these options, such as arbitration and mediation. If you are intending to divorce and are concerned about details of your private life being made public, we can advise on the alternative processes.

What happens if my former partner has my private information, photographs or documentation and is threatening to use or share them?

A breach of a person’s privacy, by accessing or sharing private information, photographs or documentation without consent can give rise to civil and, in some instances, criminal sanctions. Urgent action can be taken in appropriate cases to prevent a person from sharing the information; or to force them to give the documentation back to its owner.

Often in the context of a family law dispute, situations of this kind may arise where one of the parties has had an affair, or where financial information obtained unlawfully is being relied upon. Social media can often be used to attack or embarrass, which in extreme cases could constitute harassment.

Our Family, Reputation Management and Criminal teams can provide urgent advice where situations like these arise to help you understand the various legal routes available.

Can you use covert recordings as evidence?

With developments in technology in recent decades, covert recordings have increasingly become a feature of family law disputes (particularly those regarding children), where one party seeks to use these as evidence of the other party’s behaviour.

This is an extremely sensitive area because of the potentially harmful consequences such recordings can have on the welfare of the individual who was recorded, particularly where they are a child. The position in terms of breach of privacy and the legality of such recordings can also often be unclear.

Although we do have experience of cases where covert recordings have been permitted as evidence, there is no presumption to this effect. There has been recent guidance in this area and so, before considering making a covert recording, it is very important that you take advice. It is important to consider the relevance, utility and potential repercussions of making recordings, and the deployment of evidence of this kind must be very carefully managed. There may also be costs implications associated with the additional litigation around covert recordings.

Our Family team has experience in this area, supported by our Criminal and Reputation Management team.