Revisiting the use of NDAs within family law

Ashley Wynne Barrister No5 Barrister’s Chambers

The misuse of non-disclosure agreements (‘NDAs’) has made media headlines in recent years following a number of high profile cases involving individuals such as Harvey Weinstein and Sir Philip Green. Following on from those cases the legal authorities have taken note of potential issues regarding the use and abuse of NDAs. The Solicitors Regulation Authority (‘SRA’) published Warning Notices in March 2018 with updates in November 2019 and December 2020 and in May of this year the Legal Services Board (‘LSB’) issued a ‘call for evidence’ in relation to the misuse of NDAs asking for help as to how that misuse might be addressed ‘by supporting lawyers to meet their professional and ethical obligations.’ The full and frank disclosure required within financial remedy and cohabitation disputes provides a fairly obvious context within which parties might seek reassurances regarding the dissemination of their confidential information when attempting to negotiate a settlement. Similar considerations could also apply when negotiating pre-nuptial or cohabitation agreements. Within this context how can family lawyers utilise NDAs in relation to pre or post nuptial or cohabitation...

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