I’m negotiating an agreement with my ex. Can our discussions be used against me in court later on?

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One question we’ve been hearing more since the launch of MyLawBC is whether what you say or write to your spouse when you’re writing your separation agreement could be used against you in court later on. MyLawBC’s Dialogue Tool is a platform for collaboration where you discuss and negotiate with your ex. Understandably, some people are concerned that what they say in good faith while negotiating could come back to bite them later. There’s a general legal rule that says that if you're in a legal dispute and trying to reach a settlement, then your communications can't be used against you in court. This is called settlement privilege. The idea is that you’ll speak more freely and openly during a negotiation if you aren’t worried that what you say will be used against you.

In this case, communication can become privileged (unusable in court) if:

  1. there’s a dispute that could be subject to a court case between two people. It doesn’t have to go to court, it just has to have the option to; and
  2. the purpose of the communication has to be to try to reach a settlement.

It’s more complicated than this summary though. For example, there are exceptions for threats or fraud. You can read more about settlement privilege in our new fact sheet on the Family Law in BC website.