Can my spouse use our settlement discussions against me in court?


There's a general legal rule that says if you're trying to reach a settlement with someone else in a legal dispute that your communications can't be used against you in court. This rule is called settlement privilege. Any communications that can't be used as evidence in court under this rule are privileged (can't be used against you in court).

This rule is an exception to normal evidence rules and is based on the idea that people will speak more freely and be more likely to reach agreements if they don't have to worry about having what they say in settlement negotiations used against them later on.

When are communications privileged?

There's a two-part test you can use to figure out if your communications are privileged:

  1. There must be a dispute that could be the subject of a court case between the two people.
    This doesn't mean that a court case must have started. Many people reach settlements without ever starting a court case. This test applies to all disputes between separating couples about parenting, support, and property/debt division.

  2. The purpose of the communication must be to try and reach a settlement.
    This includes any invitation to start negotiation or settlement discussions, and all the communications made in the course of those discussions.

What kinds of communications does this apply to?

This applies to any kind of communication that meets the two-part test above. This could include spoken communication (for example, in-person or phone conversations), letters, emails, texts, and documents shared with the other party).

What about mediation or collaborative law discussions?

Communications made during mediation fall under settlement privilege. This includes mediations done with either private mediators or family justice counsellors. All discussions and information exchanged in a collaborative family law process are also covered by settlement privilege, since the main purpose of this process is to reach a settlement.

What does "Without Prejudice" mean?

Lawyers often put the words "Without Prejudice" at the top of a letter or email sent during settlement negotiations. This term is a clear signal that:

  • the information is meant for reaching a settlement, and
  • the sender does not intend for it to be introduced into evidence in a court.

However, just putting the words "Without Prejudice" on a document does not create settlement privilege. The document still has to meet both tests for settlement privilege. If the document doesn't include the words "Without Prejudice," but it does meet both tests, it's covered by settlement privilege.

Exceptions to settlement privilege

There are a few family law situations where settlement privilege won't be applied:

  • If one party says there's an agreement but the other party says there isn't.
  • If both parties to an agreement can't agree about what the agreement means.
  • If the communication contains a threat.
  • If one party committed fraud to get a settlement.
  • If the communications are criminal or show an intention to commit criminal acts.

Can you give up privilege?

If both parties involved in the dispute give up (waive) their privilege, the communications could be used as evidence. But you can only waive your own privilege, not the other party's. You could waive your own privilege indirectly by, for example, referring to the privileged communication in your affidavits. The other party could then object to your affidavit and keep it out of evidence.(Similarly, you can object if the other party tries to put privileged communication into their affidavits.)

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