The rise of NDAs in divorce

For some in the public eye, non-disclosure agreements (NDAs) are an essential part of life, protecting from scrutiny information they prefer to remain private. In February this year, the Legal Services Board issued a report on the misuse of NDAs to conceal wrongdoing, particularly where there is a clear power imbalance between parties.

Due to the pervasiveness of social media, we all now have a public footprint of some form or another, and we are increasingly conscious of the permanent damage that a post on Facebook, Instagram or X can cause. It is no surprise, then, that people of all backgrounds (not just the rich and famous) are increasingly seeking to protect their privacy by turning to the NDA as a reputation management tool. This is as true in the context of marriage and divorce as it is in any other.

Family law context for NDAs

Divorce: Upon divorce, for the terms by which a couple’s wealth is divided to be legally binding in a strict sense, they should be set out in a court order, achieved either via a negotiated agreement (perhaps using some method of non-court dispute resolution), or through imposition by a judge.

Although there is an inherent duty of confidentiality that applies within financial remedy proceedings, this only serves to protect information disclosed therein. Accordingly, in order to obtain more wide-ranging protections against the disclosure of sensitive information relating to the marriage, concerned parties may wish to enter into an NDA, either as a standalone document or as a clause (usually an undertaking) within their financial order.  

Nuptial agreements: Pre-nuptial agreements are surging in popularity. Though still not strictly binding in England and Wales, the court will follow them where they have been entered into properly (that is, with legal advice and on the basis of full disclosure, inter alia), and where the provision made for the financially weaker party is fair and enables them to meet their reasonable needs.

Pre- and post-nuptial agreements are a natural home for NDAs as they can govern against the publication of sensitive information both during and following marriage.  

Information subject to an NDA

Within the safety of a marriage, people tend to share a great deal of personal and financial information that they would never intend to be disclosed more widely. It is precisely this that the marital NDA seeks to protect. This can include:

• information of a private nature relating to the couple and their married life – such as details about arguments, addictions, affairs, sexual proclivities or other behaviours or habits that might cause embarrassment if made public, even if just to family and friends;
• information about the other’s dealings with third parties – this may include allegations relating to inappropriate behaviour or civil disputes, as well as their professional/social relationships; and
• financial information – people are often concerned that details of their private finances are not made public. This may also include commercially sensitive information about their businesses or employers that their spouse has become privy to during the marriage (perhaps not legitimately so), and which could have serious professional consequences if it were made public.

The ‘off-the-shelf’ NDA will define the confidential information it seeks to protect quite broadly. But clear areas of concern can be referred to very specifically and in considerable detail, so that there is no ambiguity as to their protected status.

Publication of Family Court judgments

One related point to consider is that there has recently been a shift in the Family Court (particularly among certain High Court judges) towards judgments being published on a non-anonymised basis. This is an evolving area, but a marital NDA can require that both parties request that the court (if in proceedings) anonymises any judgments it chooses to report on, and sets clear restrictions for any press involvement. Although this will not bind a judge, it may influence their decision making.

Benefits and drawbacks

The agreement of an NDA comes at a financial cost (in terms of legal fees) and it may also alert the person being asked to sign an NDA to the fact that they have more bargaining power than they might otherwise have thought.

Good legal advice and a strategic approach are important. For the person being asked to sign the NDA, the request can be taken negatively, particularly when the issue they are being asked to keep confidential may be a key reason for the relationship breaking down. A good lawyer can assist the person being asked to sign the NDA by ensuring that specific people are carved out of disclosure/publication prohibitions. They can also ensure that the person can speak to their support network and advisers. The lawyer acting for the party seeking the NDA can help set things up for success by thinking through what the potential objections may be and offering solutions.

Where there is a breach of an NDA, there are various methods of enforcement available, including for contempt of court where an undertaking has not been followed. However, depending on the method of enforcement, it is possible that any resultant court proceedings will be held in public and can be fully reported on. A holistic view of the overall merits of enforcement needs to be taken and the involvement of a PR adviser can be sensible to ensure all relevant considerations are factored in.

Alex Brereton is a partner and Eri Horrocks a senior associate at Hunters, London