Non-disclosure agreements, or NDAs have been a mainstay of the business world for decades now, as entrepreneurs and businesses endeavour to reach advantageous agreements and develop potentially profitable products.

These legal contracts forbid signatories from disclosing confidential, sensitive or proprietary information.

But did you know that they have also begun to find a place in divorce settlements? The trendsetters were wealthier divorcees who began to see the potential utility of the NDA in helping prevent confidential business data and personal information from leaking out into the public domain.

Who can make an NDA?

NDAs may be proposed by a spouse (or ex-spouse) to prevent disclosure of private or sensitive information arising during the marriage or separation. Examples include:

  • Details of extra-marital affairs, addictions, or mental health issues
  • Confidential business plans, investments, or relationships that the disclosing party considers commercially sensitive
  • Communications or conduct that one party deems potentially reputationally damaging if aired publicly or on social media

Sometimes an NDA is drafted as a separate standalone agreement; at other times it is folded into a wider financial settlement or divorce agreement as a confidentiality clause. In many high-value divorces, parties negotiate not only who gets what financially but also how much can or cannot be said later.

An NDA can be standalone or part of a larger legal framework – so, for example, a divorcing couple intent on an NDA might ask their legal representatives to draft a standalone document, or they may choose to incorporate the agreement into the financial settlement itself.

Non-disclosure agreements can only be used to protect information concerning legitimate business activities: anything illegal is excluded by definition. Because family courts place emphasis on transparency and fairness, the use of NDAs in this context is fraught with complications.

Confidential in the courtroom

But why? As any divorce lawyer will confirm, being casual and careless with the details of your divorce settlement is already frowned upon. Everyone involved in financial settlements has a “duty of confidentiality”, a requirement placed upon them to protect the details of this component of divorce from disclosure. But this duty applies only to the financial settlement, the part normally referred to as “financial remedies” by family lawyers. Any confidential or sensitive information that might come to light outside it will not be protected by this standard duty. This means that an NDA can be an attractive additional tool.

NDAs cost money to draft effectively, and their whole purpose is to conceal information that might lead to financial loss or be generally damaging if it became known. Even though NDAs can apply equally to both parties, restricting disclosure by either, within a family the incentives are clear, and this means there is often an imbalance of power if one spouse is wealthier and they insist the other sign an NDA. But equally, a canny spouse will cotton on to the underlying message of an NDA demand: that they are in possession of valuable information and so have power too.

In any case, the appeal of the non-disclosure agreement is by no means restricted to the wealthy, and we have one thing to thank for that: the ubiquity of social media. Reputations can be significantly damaged by a single post on Twitter, Facebook or Instagram– and that damage may linger for years, even if the subject of the post is not especially noteworthy. A timely NDA can help the vulnerable avoid such risks.

Legal enforceability and limits under family law

One of the key constraints is that in divorce/ancillary relief proceedings, both parties are under a legal duty of “full and frank disclosure” to the court (and to each other) of all relevant financial information, assets, liabilities, and income streams. That duty is foundational for fair financial orders to be made. If an NDA attempted to supplant or limit that duty (for example, by preventing one party from disclosing a certain asset), it would likely be ignored by the court.

If, after a financial order is made, it emerges that one party concealed assets or misled through non-disclosure; the court retains power to revisit or set aside the previous order or impose costs sanctions. Courts have shown willingness to reopen settlements if the non-disclosure was material and would have led to a different outcome.

Thus, an NDA cannot realistically override or displace this core disclosure duty in financial remedy proceedings.

Public interest in openness  and court transparency

Another key constraint is that family courts today embrace a measure of publicity and scrutiny. While not all hearings are in open court, judgments and orders may be published (often anonymised or partially so). In some cases, parties may request that judgments anonymise names or redact certain details, but a blanket prohibition on disclosing any information may conflict with the court’s duty to make its decisions intelligible and accessible.

Additionally, family judges are wary of gagging orders that unduly stifle access to justice, oversight, or accountability. If an NDA attempts to silence a party from providing truthful evidence or giving witness statements in future proceedings, a court may rule it contrary to public policy.

Illegality and unenforceability

An NDA cannot lawfully cover or protect wrongdoing (e.g. concealment of crime, violence, or fraud). If the subject matter of the NDA includes criminal activity, or where a signatory is a victim of abuse, courts may render parts of it void.

In addition, regulators (such as the Solicitors Regulation Authority) have issued warnings about unfair or oppressive confidentiality terms, especially where one party was under pressure or unequal bargaining position. Unjust time limits, too-harsh penalties, or shifting burden of interpretation have been flagged as potentially abusive. Therefore, even where an NDA is agreed, sections of it may be judged void for being beyond legitimate bounds or against public policy.

Nuptial agreements

Pre- and postnuptial agreements have no automatic legal standing in family courts. Judges must be convinced the parties were fully informed and that they make fair provision for both spouses. Despite this, they have been a familiar inclusion in divorce proceedings for years, and they have never been more popular.

However, nuptial agreements should not be confused with NDAs: nuptial agreements attempt to define who will receive which assets (money or property) in the event of a divorce. Nevertheless, it has become increasingly common for NDAs to be incorporated into nuptial agreements, especially amongst divorcing spouses who fear that a heavy-handed nuptial agreement may not cast them in the best light, or who simply wish to ensure the security of sensitive information.

Practical risks and pitfalls in family cases

Power imbalance & coercion

In divorce or separation, especially where one spouse is financially dominant or legally better advised, asking the other to sign an NDA can carry implicit coercion (e.g. “sign this or you lose your settlement”). This raises real risks of undue influence or duress arguments, which may lead a future court to set aside the NDA or find it voidable. The weaker party may have little room to negotiate terms, and may not fully appreciate the legal consequences.

Hidden future liability & enforcement difficulty

A spouse may agree to a confidentiality clause without fully appreciating risks of future change. If circumstances evolve (e.g. need to litigate child welfare matters, or respond to defamation or harassment), a previously agreed NDA might hamper important disclosures or defences. Moreover, enforcement of an NDA can provoke further litigation: if one side breaches, the other may sue for damages or injunctions, but enforcement via court may itself necessitate revealing the very material that is supposed to be secret (thus undermining the purpose).

In large disputes, forensic accountants and disclosure protocols may wrestle with limiting confidentiality while giving parties access to key documents. The party insisting on wide secrecy may find the court demands search, audit or disclosure that exceeds what they had hoped.

Reopening final orders

Even after a divorce is legally final, the discovery of undisclosed assets or misconduct can allow the innocent party to petition to reopen the settlement. The existence of an NDA will not necessarily block that reopening, especially when the non-disclosure was material. The court can ignore a confidentiality clause to protect fairness and integrity of the legal process.

Reputation vs rights to speak

One of the motivations for NDAs is reputational protection. But parties must balance that against the right to speak (particularly to legal advisers, child welfare professionals, or others) in future settings. Too restrictive a clause could stifle necessary disclosures (for example, in separation from a domestic abuse or safeguarding situation). Courts may refuse to enforce an NDA clause that unduly gags a person’s ability to respond to allegations or defend their own interests in future court or statutory proceedings.

Legal perspectives

An NDA may have a legitimate role as a tool for protecting privacy, reputation or commercial interests in a family settlement, but it must be structured and balanced very carefully. In many cases, attempting a “blanket silence” is bound to run into judicial resistance or later litigation, so restraint, precision and fairness are essential.

Legal advice may cost money, but it can pay dividends if you are set on the use of an NDA in your divorce. A good lawyer will work to steer reluctant parties to the dotted line, addressing concerns and offering mutually acceptable compromises. They will be able to ensure the NDA is drafted in a way that will be acceptable to family court judges. A key part of this process is ensuring that both parties receive independent legal advice.

An expert lawyer will also provide guidance on the sensitive issue of enforcement if an NDA is breached. If not handled correctly, any measures taken, such as court action, could lead to further confidential information escaping into the public domain, so caution and careful consideration are essential.