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What is “privilege” in family law?

By June 11, 2020February 23rd, 2024No Comments

You may have come across the term “privilege” already or it may be new to you, but as it’s a fundamental concept in our justice system, including in the family law system, we thought we’d take a moment to look at what it actually means and offer some tips in relation to how privilege in family law is applied.

Privilege in family law can basically be understood as a method of keeping certain information of yours confidential–between you and your lawyer only–and preventing it from being disclosed to your ex or their lawyer or even a court. The purpose of having “privilege” in the legal context is that people need to be able to have the peace of mind that they are able to speak candidly with their lawyer and exchange private information without fear that it could be used against them in litigation. Further, people need to be able to protect their position and not reveal strategic or procedural plans as they head towards settlement or litigation in their matter.

However, contrary to popular belief, privilege isn’t a blanket concept and does not apply to each and every conversation had with a lawyer or to every single document exchanged with them. Let’s take a look at the different types of privilege in our legal system and what constitutes a privileged communication.

Balancing confidentiality and disclosure

First, it’s important to be aware that privilege in family law is not a sweeping right and is subject to conditions. While it may be personally preferable not to have to reveal all your personal details to your ex or a court, there is a duty of full and frank disclosure in both financial and parenting proceedings in family law. This means that certain information must be shared with the other side and/or the court. But lawyers are conscious of their duty not to mislead a court and will know when privilege applies so trust your lawyer to advise you on the information that you must disclose.

The different kinds of privilege in family law

There are two kinds of privilege in family law —”legal professional privilege” and “Without Prejudice privilege”. Here’s what the terms mean.

1.        Legal professional privilege

This privilege attaches to the client and not the lawyer, so the term “client legal privilege” is sometimes used in place of “legal professional privilege”.

It has two parts:

  • Advice privilege, and
  • Litigation privilege.

Advice privilege

People have the right to access confidential legal advice. They can rely on this privilege any time that they instruct a lawyer, even if their matter doesn’t proceed to litigation. They will not have to disclose the content of their confidential communications with their lawyer to anyone else.

However—not every communication had with a lawyer is privileged. To rely on this privilege, the communication has to have been kept confidential and it has to have related to seeking or receiving legal advice (its “dominant purpose”).

Other types of communication between a lawyer and client are not necessarily covered, such as disclosure of certain financial documents.

Litigation privilege

This applies to communications between made for the “dominant purpose” of being used in existing or reasonably contemplated future litigation. It goes beyond communications between a client and their lawyer, to include communications with third parties. For example, this may include accountants assessing assets, witnesses who may provide evidence, real estate agents valuing property, and so on.

The communications must have been created during the time period when litigation was on the horizon and must have been specifically created for the purpose of the potential litigation (its “dominant purpose”).

2.        Without Prejudice privilege

Without Prejudice privilege relates to communications between parties that have the purpose of being a genuine attempt to avoid litigation. This generally can apply to offers made between parties ‘in confident’, for the purpose of trying to settle the matter. Parties can choose to make an offer on a “without prejudice” basis, which means if it is not accepted by the other party and you do end up litigating, the offer cannot be used against you in court.  

Waiving privilege

Both kinds of privilege can be waived, either expressly or impliedly. Express waiver is where you give your consent for the information to be shared. Implied wavier is when you didn’t keep your privileged information confidential, for whatever reason. This may occur if it was accidentally sent to another party or if you referred to the privileged information to your ex (such as by saying to your ex “my lawyer told me I will get X or Y”). So take great care not to inadvertently reveal your privileged information!

Also make sure that any documents created which are intended to be privileged are marked “Confidential and Privileged” or “Without Prejudice” (again, only where such information is truly covered by the particular privilege relied on). Keep privileged information separate from non-privileged information and send privileged documents separately from non-privileged ones.

Tips on protecting your confidential information

It’s a good idea to take care that your ex-partner can’t access your private information in general. This may mean changing passwords to accounts and creating a new email specifically for communication with your lawyer.

You may like to read our previous blog on “digital abuse” and how to avoid your ex-partner spying on your digital communications.

There can be serious consequences if others illegally access information of yours that is subject to privilege without your consent.  Hacking into someone’s email or stealing their physical mail can lead to criminal charges, so you should speak with your lawyer if this happens to you.

What to do if your privileged information has been accessed

What can you do if your ex accesses your confidential information? You should immediately speak with your lawyer. Your lawyer may then write to your ex’s lawyer, to advise them specifically that your information was privileged, request that they identify which information was accessed, by whom, how and when, and demand that they destroy the documents.

What to do if you access your ex’s privileged information

If you yourself have accidentally accessed your ex’s documents or communications that may be privileged, you should never forward the information itself on to others. However, immediately ask your lawyer to advise your ex’s lawyer that you have accidentally accessed information that could be privileged. Ask for confirmation of whether the information is in fact privileged, and if you learn it is, destroy the relevant documents and make sure you never refer to them in your court documents.

Do you need advice regarding privilege in family law, or any other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

For other information regarding Family Law, you may wish to visit our sister site .


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