A guide to social media activity during a relationship litigation

Family Law - 21 December 2017

During a divorce or custody case, Courts have considered a variety of social media posts as evidence in reaching life-changing decisions in family law cases. This article presents safe guidelines on social media activity during any relationship litigation.

If you are involved in a family law matter, you need to be very aware of your social media presence and how this can potentially impact upon your case.  In addition, the Family Law Act contains very strict rules that you will need to be aware of in relation to what information you can post online in the event that you are involved in any relationship litigation.

Posting on social media may lead to a criminal offence

Section 121 of the Family Law Act essentially restricts the publication of any account of any proceedings which may identify a party to the proceedings, a witness in the proceedings or any other person concerned with the proceedings. A breach of section 121 is a criminal offence and significant penalties can apply depending on the nature of the breach.

If you are involved in Family Court litigation, you cannot publish by any means (including Facebook or twitter) any fact about those proceedings, including the fact that you are even involved in litigation or have been to Court. Although the section does not prevent you from talking to friends and family about the proceedings or what has occurred, it is essential that you do not publish any fact or circumstance about the proceedings to a wider audience. 

You should also ensure that you do not show affidavits, or other court documents to anyone, even close friends and family.

Social media guidelines during relationship litigation

Whilst you are involved in a family law matter (and irrespective of whether the matter has proceeded to litigation) you should also be extremely careful about what you post online on your social media accounts as well as text messages and emails.  All of this information can potentially be used as evidence.

 In particular:

  • Assume that everything that you post online can be read by everyone.  Think carefully about whether a potential posting could be harmful to your case.  If in doubt, check with your lawyer before you post!
  • Never post on social media accounts whilst emotional or upset;
  • You should never make disparaging remarks in relation to your former partner or their family members on social media accounts;
  • You should never make comments in relation to your former partner's parenting abilities on social media accounts;
  • Think carefully before posting photographs of your children on social media if you are involved in a parenting dispute;
  • Consider removing your Facebook and other social media accounts whilst involved in family law matters or at least conduct a review of your historical postings and delete posts if necessary;
  • Do not get friends or family to post offensive or disparaging remarks in relation to your former partner on your behalf; 
  • You should never send abusive, aggressive or rude emails or text messages to your former partner; and 
  • Never publish anything online in relation to Family Court proceedings, including comments in relation to your former partner, their lawyer, the Judge or the court process in general.

Lander & Rogers is a leading provider of family law services in Australasia and internationally, with the largest number of accredited specialists in Family Law in Australia.  We have extensive experience dealing with divorce and divorce settlements, parenting rights and children's matters, property settlements and financial disputes, and related issues involving married and de facto couples.  If you have questions in relation to the above at any time please contact us.


Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.