Much like NDAs, as knowledge of nuptial agreements has grown in the public consciousness, so has their popularity, and they are no longer the exclusive preserve of the super rich.
It is possible within pre-nups (and post-nups) to regulate arrangements both during and after a marriage. As such, they are a natural home for NDAs that seek to prohibit the disclosure or publication of confidential information from the moment they are entered into.
In some cases, the NDA element is one of the key reasons that one party is seeking the agreement of a pre-nuptial agreement (and again, this may trigger an element of horse trading that benefits the financially weaker party).
The existence of the nuptial agreement itself may also be included within the definition of the confidential information that must not be disclosed or published.
The benefits and the drawbacks
NDAs can be incredibly useful devices for helping to maintain the privacy and confidentiality of all manner of perceived sins.
However, the agreement of an NDA comes at a financial cost (in terms of legal fees) and it may also alert the person being asked to sign one to the fact that they have more bargaining power than they might otherwise have thought.
For the person being asked to sign the NDA, the request can go down like a lead balloon, particularly when the issue they are being asked to keep secret may be a key reason for the relationship breaking down.
A good lawyer can help by carving out specific people that the person being asked to sign the NDA can still talk to about sensitive matters (such as their own professional advisers or therapists), to ensure they are not being prevented from properly accessing a support network.
Where concerns around the publication of confidential information are a central issue for clients, some law firms regularly work with PR advisers to advise on how best to manage the risk from a non-legal standpoint.
This might involve developing a strategy to get ahead of an issue by preparing a press-release and/or engaging with journalists to quickly take control of the narrative in the event there is a future breach of confidentiality, as well as instructing defamation lawyers and crisis management professionals to secure the 'take down' of any such publications as quickly as possible once they are out, and to obtain injunctions against future public disclosures.
If there is a breach on an NDA, there are various methods of enforcement available, including for contempt of court where an undertaking has not been followed.
However, depending on the method of enforcement, it is possible that any related court proceedings will be held in public and can be fully reported on.
