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Strictly Private & Confidential - Confidentiality and privilege in family law matters

Tuesday 22nd of October 2019
By: Harriet Geddes, Solicitor, Coote Family Lawyers

Please pass on my thanks to the team. They were fabulous.

How can I be sure my information and conversations with my lawyer are kept confidential?

Confidentiality is an important part of all family law proceedings and can be a concern for many family law clients. Clients are often concerned that the information they pass to their lawyers cannot be passed on to their former partner or spouse.

Communications between lawyers and clients are confidential and subject to legal professional privilege.  Privilege applies to all legal communication made for the dominant purpose of giving or receiving legal advice. It is important to remember that once confidentiality is lost, privilege is also lost. 

There are two ways to waive privilege:

  1. Express waiver.  This involves the intentional disclosure of a document or communication that records privileged material.
  2. Implied waiver.  Implied waiver occurs when the holder of the privilege does something that is inconsistent with the maintenance of the confidentiality that the privilege protects.  This occurs even if the holder did not intend to waive privilege.

Parties to family law disputes should be careful about inadvertently waiving privilege through implied waiver, by disclosing legal advice that they have received to their former spouses. For example, if one party tells the other that their lawyer has told them “I will get 80% of everything”, they may have waived privilege about the advice they have received.

Care should always be taken with how communications to a former spouse, their lawyer or another advisor, e.g. a financial advisor, are put to avoid waiving privilege. 

To reduce the risk of one party accessing the other’s privileged communication, we recommend that clients change their email passwords and account default settings. If a shared computer or device has been used throughout a relationship, it may also be sensible for a new email account to be created.

If you have any concerns about your privacy in dealing with your former spouse or partner, please contact one of the top divorce lawyers in Melbourne for advice on 03 9804 0035.

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