Law expert says separation and social media is a doomed coupling

By Gillian Coote, Founder and Managing Partner at Coote Family Lawyers.

From Instagram and Facebook to WhatsApp and Messenger – most of us use several social media platforms and messaging apps daily. It has become the norm to share information about our personal lives. And while this is great for keeping in touch, it’s easy to forget the implications of oversharing online.

Some people who are separating turn to social media to vent and seek support from loved ones. The tsunami of responses from friends and followers can easily open the flood gates for negative conversations to take place about your ex, publicly.

But what many people don’t realise is that the laws of evidence in family law dictate that social media content can be admissible in Court. This means what you post online can be used as evidence, and ultimately, can influence the Judge’s decision. In fact, social media evidence is used every day in court cases around Australia.

Social media evidence may be used in a variety of family law cases, including child support payments and children’s arrangements – including custody matters. If a parent is seen to be acting irresponsibly on social media, this evidence will most likely be considered by the Court when deciding on the child’s living arrangements.

The same applies to child and spousal support payments. If a parent is having a hard time paying their spousal or child maintenance commitments and needs to claim financial hardship, the last thing they should do is post images of themselves with flash items or on expensive holidays – even if they didn’t pay for them themselves.

Social media as evidence

Anger is often felt during a separation, and it can be very tempting to want to communicate your feelings via the channels you’re so used to using – whether it’s a public post, or a direct message to your ex. So, my ‘status update’ to separating couples is: ‘stay off social media until everything has been finalised and the dust has settled’.

But in a world where our phones, messaging apps, and social media platforms have become an extension of us, this isn’t always realistic.

Let’s take a look at the type of social media content that can be used as evidence in Court:

• Screenshots of messages from one party in the divorce or separation to the other that are threatening or derogatory
• Posts or photos of a parent in the divorce or separation breaching Court orders or treating their child in an unsafe way
• Photos or screenshots of posts or comments that show drug or alcohol use
• Photos of a party in the divorce or separation purchasing assets or spending big, after failing to disclose the assets, or lying about their income
• Threatening or derogatory comments about your ex online to third parties, whether in private messages or publicly
• Posts you’re tagged in by third parties that mention your Court proceedings or are offensive and derogatory to your ex

It is also important to keep in mind that the Family Law Act – the key piece of legislation which is applied when determining issues arising out of a relationship breakdown – says both parties in the divorce or separation are not allowed to post information about the Court proceedings online if it can identify the other person involved in the case (e.g., your ex). If you’re found guilty of this kind of conduct, fines or even imprisonment may be on the cards.

A separation or divorce is a stressful and overwhelming time for most people, but it’s vital to think carefully about how you use social media, the images and information you (and your friends and family) share about your ex, and the ongoing Court proceedings.

Remember anything you share on social media, can often not be unshared. It only takes one screenshot for it to exist forever.