you can agree on a property divison via consent oders or apply to the court
If separating couples do not agree about division of property and money they have no other recourse but to go to court and apply for issuance of orders. However, before the application is heard or even before it can be filed, parties are required to undergo dispute resolution.
Parties must show first to the satisfaction of the court that they exercised genuine effort in resolving the dispute out of court or through the dispute resolution. The dispute resolution has a dual purpose. It is intended to help parties resolve their issues without having to go to court and go through a full-blown trial.
The dispute resolution practitioner who will conduct the dispute resolution can guide parties to come up with an agreement which is fair and just for all concerned parties. On the other hand, if parties do not reach an agreement the dispute resolution serves as a venue for the parties to narrow down their dispute to only relevant issues for the court to decide on.
There are cases however which do not require dispute resolution or pre-action procedures. These are:
- Applications solely for child support;
- When there are allegations of family violence or child abuse;
- Where a case includes the court’s bankruptcy jurisdiction;
- In cases involving urgent matters;
- Where a party would be unduly prejudiced or adversely affected if another person would be made aware of the intention to file a case;
- Where there is a genuine intractable dispute;
- Where there is a dispute as to the existence of a de facto relationship.
If the instant case is not one of the aforementioned exceptions then parties must undergo dispute resolution. Afterwards, the dispute resolution practitioner will issue a certificate which would depend on the outcome of the dispute resolution. In case parties have not resolved their dispute through the dispute resolution then the certificate must state this fact and take the certificate to the court.
It is important to know which court has jurisdiction over the application. Family Court has jurisdiction over cases that involve more complex matters like the involvement of multiple parties, complex questions of law or complicated superannuation issues. If the application is only about less complex matters then the Federal Circuit Court is the proper venue.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.