Several judges, led by Mr Justice Mostyn, suddenly announced that they, and the Court of Appeal, had got the law wrong for many years. In fact, they have said in a view that casts aside many years of established case law, money cases in divorce should always be open to the public, and all aspects fully reportable.
The additional development is the Farquhar committee on transparency, which finishes its consultation at the end of this month.
Already, money cases in divorce are plagued by the fear of or delight in publicity. The judiciary has decided to discourage couples going to court by saying that all cases will be published with names and all details revealed.
The change in the law — and the proposed reforms — are a blackmailer’s charter. The person without the money will threaten to reveal the sexual peccadillos of their spouse unless their financial demands are met. The blackmailers will refuse to agree to arbitration, as that remains confidential, leading to unnecessary litigation that should have been resolved by arbitration.
At every preliminary court hearing, the issue of publicity will take over and blow up the court timetable. Reporting restrictions orders will have to be obtained to prevent any publicity and applications will have to be on notice to the media leading to half a day or a day of the court’s time.
Lucy Reed, a family law barrister who writes the Pink Tape blog, neatly summarises the danger: “This burden will fall on the vast majority of litigants, creating a huge potential burden on the system as the court disposes of such applications.”
Moreover, the consultation proposes that all financial documents will be disclosed to journalists and bloggers. What public interest is there in seeing someone’s bank statements and credit card statements? The risk of fraud or improper use is significant. Such detailed documentation is rarely available to the public in civil litigation cases.
Local GPs and businesspeople can be celebrities in their towns — but what is the genuine public interest in knowing about their money and how it is divided on divorce?
The question is, what is the correct balance between the public interest and the privacy of divorcing couples?
The obvious solution is that all decisions on money on divorce cases should be published without names. The current change in the law, and consultation on future change, risks encouraging further litigation and blackmailers.
This article was originally published in The Times. Read Mark’s article here.