Should your details be private in divorce finance cases?

When you go to court to sort out a financial remedies settlement on divorce your private financial affairs will be discussed. Indeed, the court will expect nothing less – both parties will be required to make full disclosure of their finances.

And it may not be limited to your financial affairs. For example, if you are in business with others then their financial affairs will also be disclosed.

Now, if this disclosure is limited to those involved in the court proceedings, then little or no harm will be done.

But what if the judgment of the court is published? Then your private financial affairs will be made known to the world.

And these days the family courts are expected to be more transparent about what they do, which means more judgments being published.

This has led to a debate between family lawyers about whether parties involved in financial remedy proceedings should be entitled to anonymity.

In modern times it has generally been the rule that financial remedy judgments should be anonymised.

But this has recently come under question, with High Court judge Mr Justice Mostyn suggesting that the default position should be that judgments be published in full without anonymization (save that any children would continue to be granted anonymity), unless there was a good specific reason to depart from this ‘rule’.

However, a recent report has cast doubt upon Mr Justice Mostyn’s position.

The report, prepared by a group of mainly lawyers looking at the issue of transparency in the financial remedies court, considered the competing arguments for and against anonymization.

Arguments for anonymization include the right to privacy of the parties, the fact that non-anonymization could discourage parties from making full disclosure, and the fact that an individual’s name is not essential for the understanding of how the family court works.

Arguments against anonymization include the principle of that justice should be open, the infringement of the rights of the media caused by anonymization, and the fact that other non-family civil cases are not anonymized.

The group undertook a survey to ascertain what lawyers felt on the subject. The survey found that 77.5% of respondents favoured anonymization, with only 16.5% against (the other 6% were undecided).

The group concluded that there should be a starting-point that reporting, whether by the media or in judgments, should be anonymised. They said that this would not place a veil of secrecy over financial remedy cases – the only secrecy would be in respect of the actual name of the parties, which would lend little or nothing to the greater understanding of the case, or the public interest in scrutiny of the family justice system.

You can read the full report here (section 12 deals with the issue of anonymity).

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