Angela Rayner’s recent difficulties flagged up not just the importance of getting tax advice before engaging in complicated property transactions, but also the difficulty that can result in a financial order made in divorce proceedings which restricts the parties’ freedom to disclose information about their cases to third parties.
Rayner’s defence to the allegation that she should have paid stamp duty land tax at the higher rate was that she no longer had an interest in the family home that she had owned with her former husband, and therefore her purchase of a flat in Hove only meant that she had to pay duty at the normal level for a person who owns no other properties. That sounded entirely plausible to me at the time, but it turned out that matters were somewhat more complicated than that and she should have paid the higher tax.
During the early days of the scandal, Rayner appears to have been constrained from commenting freely about the financial deal in her divorce proceedings as a court order prevented her from doing so. Only once that prohibition was lifted was she able to speak freely about her divorce settlement – not that it did her much good.
I have not seen the financial order made in her divorce. However, I suspect that the recital to order contained the following undertaking (or something like it):
Undertaking not to disclose information
The applicant and respondent shall not:
- reveal to any third party unconnected with these proceedings (excluding any person to whom it is necessary to disclose relevant parts of this order for the purposes of implementation or professional advice): (i) the terms of this order, and (ii) any of the financial particulars disclosed in these proceedings;
- cause or facilitate publication in any form of the terms or particulars;
- take any steps as a result of which the terms or particulars are likely to become public knowledge or are reasonably foreseeable as being likely to become public knowledge; and
- fail to take any steps which either party may reasonably be expected to take to prevent the said terms or particulars from being public knowledge in circumstances in which they would otherwise be likely to do so.
This paragraph is not an order of the court, it is an undertaking; in other words a solemn and binding promise by the parties to the court that they will not disclose information about the case. This wording is part of the standard precedents which the court now expects solicitors and barristers to use when the draft financial remedy orders. Undertakings tend to be used when the court does not have the power to do something, but where a binding provision is required.
If Rayner’s financial order contained this type of clause, then she would be barred from revealing any financial information unless her former husband agreed or the court released her from the undertaking.
I occasionally see this wording included in the recital to draft financial consent orders drafted by the solicitor acting for the other side in my cases. My practice is usually to insist that they are deleted.
Restrictions on the parties disclosing information and documentation about their children in child arrangements disputes are commonplace and such restrictions are sensible. Such sensitive stuff should not be shared with people who do not need to see it. However disclosing information and documentation about the parties’ financial cases is not the same.
My view is that this type of restriction is unusually and unnecessarily onerous on the parties. I can see the sense in including such a clause in a case where one or both parties are very high profile (such as a deputy prime minister) or where they are celebrities. However, for normal people, they are overkill and do nothing but create the potential for serious problems.
I would suggest that it is unrealistic to expect most people to keep their mouths shut about what happened in their divorce, and how and why they ended up with what they got at the end of the day. People will inevitably talk to their friends and families about it. It is unrealistic to expect this not to happen. It is arguably necessary and even healthy for people to talk about it. Divorce and separation is a stressful and emotional experience. People need to vent. They need to get things off their chest. Preventing them from doing so will simply cause simmering resentment for decades to come. Not great, especially where the parties have children.
And what happens when, inevitably, one of the parties can’t keep their mouth shut? Or where one party falsely, maliciously and perhaps abusively claims that an undertaking has been breached?
An undertaking to the court is a serious thing. Breaching the terms of an undertaking to the court can be punished by a fine or a sentence of imprisonment. Therefore, such undertakings should not be given lightly and should, I suggest, only be used where absolutely necessary. For normal people they rarely will be.
I don’t believe that the court can impose an order that information about the parties’ financial shall not be disclosed. I am unaware of any power that the court has to make such an order, and the fact that the wording is described in the standard precedents as an undertaking and not as an order implies to me that the court has no power to make an order in these terms and that it can only accept an undertaking. If I am wrong about that, and the court does have the power to make an order barring disclosure of information, I still would argue that such clauses are best avoided in the majority of cases.
4 October 2025
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