Family Law: Without prejudice save as to costs

Without prejudice save as to costs (phrase): the communication in question cannot be used against the writer except for the purposes of ascertaining whether costs should be awarded (for our blog post about ‘costs’, click here).

 This phrase will commonly be seen on the top of letters and offers sent during the negotiation phase of a family law matter. By labelling correspondence with this phrase, the writer is indicating that the contents within cannot be relied upon as evidence in court. This phrase invokes a broader principle of privilege, which is a special kind of confidentiality between parties to a negotiation.

The benefit of without prejudice correspondence is that it encourages a genuine exchange of concerns and desires between parties to a negotiation without fear that their honesty may be used to disadvantage them further on.

 The exception to this is in relation to a claim for costs against a particular party. As such, without prejudice correspondence cannot be used against you in reaching a settlement in your family law matter but may, in limited circumstances, be used to make you pay the other side’s legal fees. For more information, read our blog post about ‘costs orders’.

 If you have a family law matter, concerns about how to get a family law property settlement or questions about family law and separation in NSW and want to find out more please do not hesitate to contact us on 9688 6023 or email us at info@franklegal.com.au.

 This article is provided to the reader for general information. It is not legal advice. It was written by Andrea Spencer & Emily Graham and edited by James Frank.

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