Non-disclosure agreements have been a feature of life for those in the public eye for many years, and they continue to be used by the rich and famous to protect sensitive information that they would much prefer to keep private.
When this information is leaked in breach of an NDA, the outcome is often explosive and public knowledge of the existence of an NDA can lead to accusations of gagging, and the abuse of an uneven power dynamic.
However, for every such leak, there are thousands of NDAs that continue to function quietly and effectively, keeping their signatories’ secrets hidden from view.
While the very public downfall of figures such as Harvey Weinstein goes to show the limitation of NDAs, they have also served to increase the public’s awareness of them.
With the ascendancy of social media, we all now have a public presence of some form or another, and are increasingly conscious of the permanent damage that a single post on Facebook or X can do to people’s lives.
It is no surprise then, that increasingly people of all backgrounds are becoming pro-active in seeking to protect their privacy in whatever ways that they can. This is as true in the context of marriage and divorce as it is in any other.
What matters are people trying to keep confidential?
NDAs have become a more common feature in pre-nuptial agreements and financial settlements on divorce. They range from the relatively simple (keeping personal financial information private and confidential), to the wide-ranging and deeply specific, and in some cases can become the central feature of negotiation, with significant sums of money being committed in the other direction to secure their agreement.
In all cases, their content will depend on the nature of the information people are seeking to protect. For example, this may be:
- Details of a private nature relating to the couple and their married life – for many of us this might be relatively uninteresting to others, but for some (particularly those with a media presence of some kind) this may include 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 of criminal behaviour or civil disputes, as well as their professional/social relationships.
- Financial information – people are often concerned that details of their private finances are not made public, but 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. In these cases, it is often mutually beneficial for the person who is being asked to sign the NDA to agree to do so, so as not to strangle the goose that lays the golden egg. It is usually in everyone’s interests to ensure that sources of wealth are not prejudiced.
In addition to the specific details that are sought to be protected, what will also matter is the motivations and personalities of the parties involved.
In particular, the public narrative of why a couple are getting divorced can be a hotly contested issue, for example where large families and a wide circle of friends (or a public following) may be interested in the latest gossip.
When relationships break down, each party may have very different views about why this has taken place (and indeed about the other party generally), and while emotions are still raw this can cause obvious problems when people have such easy access to a wide network via social media.
As a result, NDAs may become more significant points of negotiation where one or both parties wish to control the narrative following a divorce.
So when and how are matrimonial NDAs entered into?
Divorce
Upon divorce, the terms by which a couple’s wealth is divided should ideally be set out in a binding court order. This can be achieved by reaching a negotiated agreement (perhaps using some method of non-court dispute resolution – for example, mediation), or it can be imposed by a judge following contested court proceedings.
