Offers to settle a family law case are highly encouraged. Settlements decongest the court docket since parties who settle their cases outside of the courts no longer have to go through an exhaustive hearing.
Furthermore, parties are spared from going to court and incurring legal expenses.
The Family Law Rules 2004 sets forth the procedure followed in the making, acceptance and withdrawal of an offer of settlement.
In accordance with Reg. 10.01 of the Family Law Rules 2004, an offer of settlement must be made in writing and must not be filed. A party may offer to settle part or all of a case or appeal. So it may happen that only part of a case or appeal will be terminated leaving other issues for the determination of the court.
The offer to settle must be served upon the other party at any time before the court makes an order disposing the case. Making an offer to settle necessitates costs for which the person making the offer must be prepared to pay.
There might also be legal consequences to the acceptance of the person which must be thoroughly discussed with a lawyer. Once an offer is already accepted it would be effective and all parties concerned are going to be bound by it. The person making the offer must be informed of the effects before making the offer to the other party.
In cases involving property it is mandatory for the parties to settle pursuant to Reg 10.06. Parties are required to settle within 28 days from the conciliation conference. If there was no conciliation conference, the 28 days shall be counted from the procedural hearing or until such time that the court orders the parties to make an offer of settlement. In a property case, the offer of settlement must specifically state that the offer was made under Division 10.1.2 of the Family Law Rules 2004.
“Without prejudice” is a legal term that simply means “this cannot be mentioned to a judge”. This is why Reg. 10.02 requires that a without prejudice offer that has been made must not be mentioned in court or any document filed but this rule does not apply with respect to an application for costs or an application relating to an offer. However, if the offer made is an open offer, the terms and conditions of the offer must be disclosed to the parties and the court.
Once an offer is made and conveyed to the other party, it may either be rejected or accepted. If the offer is rejected then it is as if the parties have not reached an agreement. Acceptance of an offer must be in writing and sent to the person who made the offer.
The acceptance of an offer may be made before the other party withdraws the offer and before the court makes an order disposing the application or appeal. An offer to settle may be accepted even if the party puts up a counter-offer to settle.
Upon acceptance of the offer, the parties must apply for consent orders with the court based on the draft consent orders that has been agreed upon and signed by the parties and in accordance with Reg 10.17. One of the actions that a court may do when making consent orders is to dismiss all other applications with the agreement of the parties.
On the other hand, an offer made may be withdrawn by serving written notice to the other party notifying him that the offer is withdrawn. The withdrawal must be made before the acceptance of the offer and before the court makes an order that disposes of the application or appeal.