If the parties to a divorce cannot agree a financial settlement, then they will usually of course ask the court to decide the matter for them, by applying for a financial remedies order.
Obviously the court will require full details of the parties’ circumstances and financial affairs, before it can make a decision. This will include the disclosure of the most personal and sensitive information, material that most people would not want to end up in the public domain.
However, court judgments in financial remedy cases on divorce may be published, especially if the cases are heard in the higher courts, for example where they are more complex, or where there is an appeal.
Until recently, this was more often than not not a problem for those wishing to keep their affairs private, as most judgments were anonymised at the request of the parties, removing their names before they were published.
All that may have now changed.
Last November High Court judge Mr Justice Mostyn, who hears many financial remedy cases, announced that in future his ‘default position’ would be to publish financial remedy judgments in full without anonymisation, save that any children would continue to be granted anonymity. He made it clear that there would have to be a good specific reason to depart from this ‘rule’.
And Mr Justice Mostyn’s approach has recently been approved by Sir James Munby, the former President of the Family Division.
Sir James has said that there is no convincing objection to Mr Justice Mostyn’s default position. He explained that many types of litigation involve private and sensitive matters but were not anonymised – the right to privacy in a financial remedy case was not qualitatively different from that of the parties in, say, a family dispute about the ownership of a company or the distribution of an estate.
Mr Justice Mostyn’s position is not yet a firm rule that must be followed by all judges, and it is not universally supported amongst family lawyers, but it does now seem possible that it may become the norm.
So how do you ensure that your financial remedies case is kept private? The answer is to avoid going to court in the first place. The best way to do this of course is to agree matters with your (former) spouse.
And if you can’t agree matters then you could consider going to arbitration, whereby a trained arbitrator will decide the case for you, completely in private. Note, however, that not all cases are suitable for arbitration – your lawyer will be able to advise you as to whether your case is suitable.
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