We are entitled to a certain amount of privacy. This is enshrined and supported by Article 8 of
the European Convention on Human Rights.
The act of marriage itself though is not private. It
must take place in a public building, notice must be given and witnesses must
be present. Beyond that, however, no one else is entitled to know the details
of how a couple conduct their marriage unless, that is, they choose to share
them or they live out their private lives in the public sphere.
Divorce also requires a certain amount of publicity.
Court proceedings must be started and the marriage is brought to an end first
by the grant of decree nisi and finally by the granting of a decree absolute at
least six weeks later. Information on the making of these orders is available
to the public. The procedural side of a divorce is seldom contentious with
court proceedings relating to the division of finances or child care
arrangements being much more likely.
Financial proceedings require a comprehensive and
invasive look into the financial lives of both parties. The standard of
disclosure is high. The Court requires a full, frank and honest picture of the
parties economic life to be able to adjudicate on a fair outcome. The standard
format to provide this disclosure (Form E) runs to 28 pages and requires
documents to be attached which include recent payslips, banks statements and
pension information.
In order to protect the parties’ right to privacy, financial
proceedings are heard in private but there are circumstances in which they may
be opened up. These were considered by Mr Justice Mostyn last year in Appleton & Gallagher v News Group Newspapers and PA [2015] EWHC 2689 (Fam).
The case related to the financial proceedings in the
divorce of Nicole Appleton and Liam Gallagher in which they jointly made
application to exclude the press from the financial proceedings. There was a
great deal of public interest in their divorce due to the celebrity status of
the couple. In the case of most divorces the press will have little interest in
attending a hearing but when celebrities divorce the case is very different. Mostyn
J reviewed the legal position and frame work for considering when the press
should be allowed access to such proceedings and, if so, to what extent.
The legal position is found in Family Proceedure Rule 27.11 which states that all hearings are held in private, this
prevents the public from attending. FPR 27.11(2) provides a list of who
may be present at these private hearings, which includes “duly accredited representatives of [the press]”. It should be noted
that the court also has the power to exclude any member of the press, or indeed
anyone else, if it sees fit (FPR 27.11(3)).
The press are also limited as to how they report the
case. It is a contempt of court if they repeat outside of court anything that
is said before the court. This applies to the parties as well. The press are
also not allowed access to any documents. So the parties can be assured that
journalists will not be able to go through their bank statements. Indeed,
Mostyn J commented that, when the press is allowed to attend a hearing, their
presence is more akin to that of an observer or watchdog.
What then of the judgement itself? Matrimonial
judgments do not have to be made public by virtue of the Judicial Proceedings (Regulation of Reports) Act 1926. Such judgments can contain a
great deal of personal information which would undoubtedly be an invasive
breach of the right to privacy of the parties. That breach is not, in itself, a
bar to judgments being published. The court must balance the parties’ right to
privacy against the right of freedom of expression. In family proceedings a
great deal of weight is given to the right of privacy but this can be countered
where:
- one or both parties have acted with iniquity and sought to use the press to their advantage (Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315);
- there already exists a great deal of information in circulation about the case, perhaps from previous proceedings (Young v Young [2013] EWHC 3637); or
- the information in the public domain is incorrect and it is in everybody's interests for this to be corrected (McCartney v McCartney [2008] EWHC 401 (Fam))
“There is no doubt the husband's misconduct has been at the extreme end
of the spectrum. It is in the public interest for his conduct to be exposed.
The public should be aware of the scale of problems that courts administering
justice and implementing the rule of law have to face at the hands of
unrepresented and malevolent litigants determined to do everything they can to
destroy the process. I appreciate that the wife, who is wholly innocent, will
lose her rights to privacy by virtue of this judgment being published without
anonymisation but in my opinion the public interest in the whole truth being
known outweighs her privacy rights.”
This shows that, when considering whether or not to
publish a judgment, the balancing act is not just between the right to privacy
and freedom of expression but also extends to the public interest and can be
applied to any case being considered by the courts.
Arguably, there will always be some uncertainty as to
what private information may be made public if a case goes to a final hearing. Different
approaches between judges adds to that uncertainty and there are calls for further
guidance to clarify the position. If nothing else, this issue highlights the
benefits of resolving financial claims outside of court.
This post is based on an article written for the Spring
Law Update, February 2016. You can read the original article here.
