Since the press were first allowed to attend family court hearings in 2010, there has been an increasingly fierce debate between family judges over the extent to which divorce matters should be kept private or whether the media should be free to report on what are often intriguing and headline grabbing cases.
One judge in particular, Mr Justice Holman, routinely conducts cases in a fully open court in the name of transparency. However, others have not adopted this approach. Mr Justice Mostyn in particular has been openly critical, stating that in his view, judges must start with the presumption that cases should be held in private.
Two cases decided over the past month have highlighted the markedly different approach the judiciary are taking to the issue.
In the Tina Norman case, Mrs Norman and her lawyers allege that her ex-husband, a former banker who previously earned six-figure salaries at the likes of Barclays, Merrill Lynch and JP Morgan dishonestly hid assets worth £300,000 when he divorced her in 2005. Mr Norman rejects the allegation and litigation is currently ongoing to resolve the dispute.
Mrs Norman's legal action first came before the High Court and was reported in 2011. However, an anonymity order was subsequently imposed after she complained of criticism and embarrassing comments in the press.
The media challenged that order last month, claiming that it would have a chilling effect on reporting divorce appeals. Mrs Norman argued otherwise, stating that the financial dispute between her and her former husband was "essentially private business" and there was no public interest in her identity being disclosed. The Court of Appeal, however, has sided with the media, refusing to impose any further order and holding that Mrs Norman and her ex-husband could be named. Whilst Mrs Norman plainly had an expectation of privacy in relation to the information in question, the Court had to weigh those rights against the media's right to freedom of expression and the principle of open justice.
In this case the media submitted that were no children to protect and the evidence would not involve Mrs Norman's privacy rights or deal with her family life or her finances so much as those of her husband. It was a case in the public interest, involving a spouse who maintained that her husband had given false evidence to the court.
In contrast to the case involving Mrs Norman, another judgment handed down last month (in X v X  EWHC 3512 (Fam)) provides more encouragement for parties who may wish to keep their divorce out of the media spotlight. In that case, the parties had been photographed entering and leaving the High Court for hearings, which the press had attended, and the names of the parties, their lawyers and the judge had been widely reported in the press. Notwithstanding this, Mr Justice Bodey made an order at the conclusion of the financial remedy proceedings that whilst the media could report certain details about the case they could not name the parties or report any information that may risk identifying them.
In this respect, the Judge sided with the husband's lawyers (the wife remained neutral) that the man had not courted public interest or acclaim and was therefore entitled to keep the result of the case private. In particular, the judge was concerned by the effect of press intrusion on the husband and his children with evidence that the children had been embarrassed and upset by earlier media coverage. In his judgment the Judge accepted that his solution was "not perfect" but did, in his view, strike the appropriate balance between the media's Article 10 right to freedom of expression as against the husband and his children's Article 8 right to privacy.
England continues to be one of the divorce capitals of the world; English courts are widely considered to be one of the most generous to the weaker financial party. However, these two recent decisions highlight the lack of consistency between the judges on the issue of media reporting and the difficulty in advising clients on whether they can expect their divorce to be kept private or become public. One key difference between the two cases above is the possible impact on the husband and wife's children in X v X, as opposed to the Norman case where there were no children involved. Regardless of that issue, parties wishing to stay out of the media spotlight may find they have difficulty in the English court where it is hard to guarantee things can ever be kept completely private. Fortunately, there is a solution; arbitration. Family Law Arbitration has been available since 2012 and enables couples to appoint a chosen arbitrator to deal with their case and, importantly, impose a binding award. The arbitration process is completely confidential and there is no risk of media intrusion.
This is clearly an attractive option to those who have concerns about their private information being made public in the course of their divorce. Unfortunately, both parties must agree to arbitrate and so it may be the case that some still find themselves at the mercy of the courts. High net worth individuals or people in the public eye, will need to give careful thought to how they manage their reputation in such circumstances.
If you require further information on anything covered in this briefing please contact Michael Patrick(firstname.lastname@example.org) or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2017