Although, within these court proceedings, there is an inherent duty of confidentiality that applies to all parties, this relates only to information that is disclosed within the proceedings.
Accordingly, whether or not court proceedings are issued, in order to obtain wide-ranging and lasting protection against the public disclosure of all relevant confidential information, parties can seek that their financial order contains an NDA clause.
This normally takes the form of a solemn promise made to the court (called an undertaking) not to publish or otherwise disclose to third parties certain specific information or types of information, which will be clearly defined in the order.
Breaching an undertaking can result in very serious consequences, including imprisonment, a fine or the seizure of assets.
Of course, such an order is usually only made at the conclusion of negotiations or court proceedings. To protect parties in the lead up to this, when emotions are often at their most raw and the scope for indiscretion is high, one party may seek that the other enters into a standalone NDA.
This would take the form of a contractual agreement between the parties, and may come with certain financial or other benefits to the party being asked to sign up to it.
While all types of NDA are generally drafted to apply equally to both parties, it is often very obviously there to protect one of them more than the other. Where this is true, it is common for there to be an element of horse trading to secure its agreement.
Although not strictly an NDA, parties (or one party in particular) may also agree to request that the court (if in proceedings) anonymises any judgments that it chooses to be reported on, and sets clear restrictions for any press involvement.
This is an evolving area, but in recent years there has been an increasing shift towards greater transparency. Where parties agree between themselves that proceedings should be heard in private and for any reported judgments to be anonymised – this may be a factor that their judge takes into account when making these decisions.
Nuptial agreements
Pre-nups, and indeed post-nups, are having a rebirth. 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, among other things – and where the provision made for the financially weaker party is fair and enables them to meet their needs.
