Divorce: Protecting Your Privacy & Reputation
This article was first produced by Tatler Address Book featured in their expert corner in October 2023. It is co-written by FLiP Associate Rebecca Alexander and Andi Terziu an Associate at Taylor Wessing. Rebecca and Andi discuss the best ways to protect your privacy during a divorce.
It is a fact of modern life that not all relationships last forever, and the end of many marriages are played out in the family (divorce) courts with often lurid reports of cases appearing in the press. For HNW and UHNW individuals and their family office advisers keen to avoid unwanted press intrusion, how can you ensure privacy and protect reputations in divorce proceedings?
Transparency vs. Privacy
Divorce proceedings have two main elements; the legal dissolution of the marriage (the divorce), and the resolution of the financial issues arising from the divorce (financial remedy proceedings).
In financial remedy proceedings, a vast array of information must be disclosed under the duty of full and frank disclosure. This information is not simply financial information – it ranges from information on health and other personal issues, to commercially sensitive information and family secrets. This makes financial remedy proceedings particularly challenging for HNW and UHNW individuals both in terms of the extent and the personal nature of the information required to be disclosed. Until recently, the parties could rest easy knowing that this information would be kept confidential within the court proceedings, but this is changing.
For years, it’s been argued that there should be more transparency about family court cases to promote the accountability of the family justice system and to boost public trust in the family courts. And so, in 2009, accredited members of the press were first allowed to attend family court cases although they were not allowed to publish details of the cases without the permission of the judge.
Things have moved on at pace, and in May 2023 the Financial Remedies Court Transparency Implementation Group published a report which confirmed that the starting point for financial remedy proceedings is privacy. They also confirmed that members of the press ARE allowed to attend these hearings and recommended that the press can apply for an order to report on the case subject to any restrictions on publication which the judge may impose.
Perhaps two of the most important recommendations for HNW and UHNW individuals and their advisers to bear in mind are that, if permission is given, the media in attendance should be able to publish the broad details of the finances of the parties (so that that public can understand the law) but not who the parties are; where they live and/or work; details of their bank accounts, etc. The media do not have to give notice of their intention to attend the court hearings.
Media attendance at a financial remedy hearing can be contested but only in limited circumstances eg. in the interests of any child connected with the proceedings, or for the safety or protection of a party, but it is a difficult hurdle to cross. The fact that the nature of the proceedings are private, that one or both parties would prefer the media not to attend or concerns about reporting are not sufficient in themselves to exclude the media. In any event, the fact that the media will be in attendance will not mean that they can automatically report (or at least report everything) they heard during the financial remedy proceedings.
It is also worth bearing in mind if you are taking your divorce case to the family courts that there is a marked difference of opinion amongst family court judges about the question of privacy, with some judges handing down a succession of judgments that say that privacy and anonymity are not the starting position. This creates an unhelpful degree of uncertainty for divorcing couples. Essentially the parties do not know what the position on privacy and/or anonymity will be until they know which judge will hear their case. This undoubtedly makes it even more difficult and stressful for those going through the Court system to understand whether their personal and private information will remain anonymous or whether it will be open to the public. The solution for HNW and UHNW individuals must instead be to avoid court proceedings if you can. If an out of court settlement is not possible and financial remedy proceedings do end up in front of one of the judges who believe that privacy and anonymity are not the starting point, consider making an application for reporting restrictions and/or anonymity (as required) before the first appointment hearing, which is heard in open court.
Irrespective of whether your divorce ends up in the family courts, there are also wider consequences for your privacy and reputation. Here we outline the possible steps HNW and UHNW individuals could take to minimise any potential damage:
- Keep control of your own information
When a relationship breakdown or a divorce attracts media attention, the media will invariably try to keep the story going by publishing any detail available to them.
Some individuals going through a break-up or a divorce may make the miscalculated step of playing out their disagreements in public. There are no winners here – public arguments only feed media attention which damages both parties. It is never advisable to post any details about your divorce or break-up on social media, nor is it advisable to have public arguments via social media replies or ‘indirects’. Such posts can be the basis for a new angle to further fan the flames of an ongoing story.
PR-led media briefings designed to discredit or damage an ex are also not a good idea. Firstly, the ensuing story will still contain elements of your own private information and will keep the breakdown of your relationship in the limelight. Secondly, by briefing the media, you may be eroding your right to privacy over certain types of information and as a result you may not be able to stop the media publishing information even when it goes too far. Thirdly, briefing the media and/or posting private information yourself on social media are two of the elements that may lead to the family court waiving the anonymity of the parties in financial remedy proceedings. This is not beneficial to either party.
Even if you do not to publish any new details, the media may seek to keep the story going by sourcing old bits of information about you.
One of the main sources used by the media for old bits of information or photographs may be your social media accounts. If you have any public social media accounts on which you have, in the past, posted information about your private life and/or photographs, the media will undoubtedly trawl these accounts to find their next angle.
Therefore, when you are under the media spotlight for any reason, including as a result of a relationship breakdown, it is advisable that you immediately change your privacy settings on your social media accounts to limit access to your historic posts and photographs. However, even this might not be enough. Close acquaintances or social media followers who still have access to your private profiles and the information and photographs contained on them may end up leaking that information or any photographs to the media. One option could be to completely disable/delete your social media accounts. Where this is not an option (e.g. because social media is an important element to your livelihood), you may wish, instead, to go through your previous social media posts and delete anything that relates to your private life.
If the media have already published information and/or photographs taken from your social media accounts which you want taken down, seek specialist advice from media lawyers. It might not be possible in the circumstances to do anything about any of the information published by the media, especially if you had already widely published it on social media. However, if, for example, you are the copyright owner of any photographs taken and published by the media, you would be able to assert your right and get these photographs removed from online articles.
- Take steps to limit private and/or damaging information posted by others
Unfortunately, not all of your information is within your control. Third parties, including an ex, may be able to publicly disseminate private, confidential and/or damaging information about you.
To avoid or minimise any damage and to keep your privacy and confidentiality intact, it is important that you seize the initiative from the start. For example, if you suspect that your divorce will lead to private and/or damaging information about you being published, either by your ex or other third parties, you should from the very start engage PR advisers and specialist media lawyers who can work together to try to protect your reputation and privacy throughout the ongoing divorce process. For example, they can assist with the following:
- Where the media have been briefed and intend to publish a damaging story about you, your PR advisers and specialist media lawyers can work in tandem to try to stop or mitigate the publication by asserting your right to reputation and/or put across your side of the story.
- Where false and damaging stories have been published about you, your specialist media lawyers may, by engaging with the publisher, be able to assist you in obtaining corrections, clarification and/or apologies. Your PR advisers will be able to assist you with putting together a statement carrying your response to any damaging allegations.
- If the media is threatening to publish your private and/or confidential information you might be able to apply for an injunction (potentially under anonymity) to stop the newspaper from doing so.
- If an ex-partner has obtained, without authorisation, your confidential information, and is threatening to publish it (e.g. via social media), you may be able to obtain a court order via the family court to prevent them from disclosing that information.
- If your ex-partner is engaging in conduct that is causing you alarm or distress, you may be able to obtain a court order to restrain your ex from continuing the conduct. Where international media are also covering developments in a story, it becomes more difficult to manage what is published. Any court orders obtained in the English courts will only apply to this jurisdiction and not anywhere else. Practically this means that if you, for example, restrain the media from publishing your private and/or confidential information in this jurisdiction, it does not automatically restrain the media in other jurisdictions from publishing that information. Once the foreign media publish information online, it can be picked up and spread through the social media grapevine, meaning that the information will in theory be accessible online in this jurisdiction if people know where to look. In such cases, you will need to come up with a global reputation and privacy strategy and will either need to work with an international law firm or a law firm that has strong international connections.
- Protect your family and others from unwarranted intrusion
In searching for new angles to keep a story going, the media may persistently pursue you or your close family and friends, including by showing up to your or others’ homes.
In order to stop journalists from harassing you and/or your friends and family, you should consider sending notices to the media making it clear that approaches from journalists are not welcome and reminding the media of their regulatory obligations. Both the broadcast and press regulators have regulatory codes with specific rules about doorstepping and harassment by journalists.
Rebecca advises a wide range of clients on all aspects of private family law, including divorce, pre and post-nuptial agreements, financial settlements and children issues.
Many of Rebecca’s cases involve complex trust structures, substantial business interests and multi-jurisdictional elements. Rebecca is fluent in French and she also speaks Spanish. She practiced family law in Hong Kong for three years before joining Family Law in Partnership.