If you don't agree about property settlement

The Family Court and the Federal Circuit Court can make orders in relation to financial matters following the breakdown of eligible de facto relationships.

The Australian Family Law Courts require most couples who divorce to make a good faith effort to resolve their differences by negotiating a property settlement before asking the court to divide their property. Sometimes one party will not cooperate. This article explains how the courts handle those situations.

The duty to negotiate - pre-action procedures

With a few exceptions to protect people from harm and to accommodate emergencies, most people who have divorced or separated must attempt to resolve their financial issues without asking a court to do it for them. Before you can apply for a financial order, you are required to take certain steps that the court calls pre-action procedures. One of those steps is to contact a dispute resolution service and to ask for assistance in resolving your differences.

Dispute resolution services act as mediators. They provide a trained individual who works with you and with your former spouse or partner to make a property settlement that you can both live with. You might not be entirely happy with the agreement you make but it is usually better to make an agreement than to leave your fate in the hands of court officials who do not know you.

What happens if no agreement is reached?

You have a duty to participate in good faith with the dispute resolution process. That means you must make a sincere effort to resolve your differences. Nobody will force you to make an agreement but you will be expected to work with the mediator in an effort to achieve a satisfactory outcome.

If you both try your best and cannot reach an agreement that you each regard as reasonable, either one of you can apply to the court for a financial order. You will need to take some additional steps at that point to prepare for a contested hearing. A lawyer can help you comply with those requirements.

What happens if one party refuses to participate in dispute resolution?

If one party chooses not to participate and has no good reason for refusing to negotiate in good faith, the court can impose sanctions. One sanction is to order the noncomplying party to pay the costs the other party has incurred in going to court. That means the party who has behaved unreasonably might be required to pay the other party’s legal fees and expert witness fees, among other expenses.

The court can also take noncompliance into account when making a property settlement. The party who behaves unreasonably may lose property that would otherwise have been awarded to that party.

This eBook provides an introduction to the legal concepts that govern property settlements and spousal maintenance. It offers information, not legal advice