The courts in Australia are the last resort for settling a property dispute between spouses.  Even if you and your spouse can’t come to an agreement, you need to show the court that you’ve tried to reach an agreement through some type of alternative dispute resolution.  This is called a “pre-action procedure”.

Pre-action procedures are also aimed at determining which disputes can be settled out of court and which really require the court’s intervention.  While you might not be able to come to an agreement about everything, you might agree on some issues (who gets the house) and only have to bring a small number of disputes to the court (how is the debt divided).

There are several steps to the pre-action procedure:

1. Inviting the other side to participate in dispute resolution, such as family counseling, mediation or arbitration.
2. Agreeing on a type of dispute resolution service.
3. Attending the dispute resolution and making a genuine effort to resolve the problem.
4. Give written notice to the other side if no agreement can be reached (or the other side refuses to attend the meeting) of your intention to file with the court.
5. Replying to the written notice if you are on the receiving end.

Consult with an experienced Family lawyer about the rules and requirements in pre-action procedures to ensure that you meet all of your obligations.

There are several options for resolving property or financial disputes.

If you and your partner can reach agreement on how your assets and liabilities should be shared you can choose to formalise this agreement. Either a binding financial agreement or consent orders can record the agreement.

Where you and your partner cannot reach agreement on how your assets and liabilities should be shared, an application can be made for the Court to hear your matter. This process is costly and time consuming.

We will always try to resolve your property/financial issues by way of agreement and we will only proceed to a Court hearing as a last option.

Mediation procedures are very effective in dispute resolution and are used to assist parties to reach financial settlements. Mediation is a in a dignified, timely and cost-effective process which can achieve a co-operative result for both parties.

The importance of family law settlement negotiations cannot be overstated.

In a recent Family Court decision, the judge made a costs order against the wife – that she pay the husband $30,000!

Why?

Because, in the judge’s opinion, the wife had let her anger and distress ‘drive the litigation’ and she had failed to make a ‘meaningful attempt’ to negotiate a settlement, including aggressively rejecting the husband’s settlement offer which ended up being more than the judge awarded her.

So, the wife’s poor attitude to settlement resulted in:

1. A lesser share of the asset pool

2. A costs order.

I wonder how she’s feeling now – even more, angry and distressed?

The moral of the story – negotiate, negotiate, negotiate and settle, settle, settle.

Vanessa Mathews is an accredited family lawyer and mediator.

If you want to reach a negotiated settlement ASAP,

contact Vanessa on 1300 635 529 or [email protected]

If you cannot reach an agreement with your former partner then an application for property settlement must be filed. There are ongoing opportunities to settle proceedings before a decision is made by the Court. Where a settlement is not reached then the Court will make a decision as to how the property of the couple should be divided after a hearing. If the property is complex then the Family Court will hear the matter.

Many people have trouble dividing their property on their own.  Divorce is a time of emotional upheaval, bringing with it anger, loss of trust and generally an inability to communicate and be fair.  This is where the court steps in.

Couples can turn to the Family Court or the Federal Circuit Court to request financial orders.  This is a court order, dividing up the property – both assets and liabilities – of a couple.