Before you file - pre-action procedure for financial cases

A separation or divorce for many couples it means settling their financial affairs or who gets what?  There is no mathematical formula that you use to work your entitlement. 

Family lawyers can only indicate your property settlement entitlements as a range of percentages of the net value of the assets of the marriage or relationship.  Their advice will be as good as the information you provide.

The purpose of the pre-action procedures is to encourage parties to make a genuine attempt to resolve or narrow areas of dispute. This should reduce legal fees and if possible, resolve disputes quickly, ideally without the need to apply to a court.

Before making an application in the Federal Circuit Court, you and your ex-partner or spouse will be encouraged to make a genuine attempt to resolve your disputes through agreement.  It is likely, however, that if no family dispute resolution processes have taken place, you will be ordered, in any case, by the Federal Circuit Court at the first hearing.

A two-stage process - pre-action procedures

For property matters in the Family Court, the essential requirements for pre-action procedure are set out in Part 1 of Schedule 1 of the Family Law Rules as a two-stage process:

The first stage
If you are considering filing an application in a property dispute in court, you must:

• deliver a copy of the pre-action procedures to the other party;
• invite them to participate in a dispute resolution process – negotiation, counselling, conciliation or arbitration – with a person or organisation to be agreed between you; and
• make inquiries about appropriate and available dispute resolution services. The parties are required to cooperate to agree on what dispute resolution service to use, then use it in a genuine attempt to resolve the dispute.

The second stage
The second stage only becomes necessary if the first stage fails. You must write to the other party, giving:

• a statement of intention to commence court action if the dispute cannot be resolved by a dispute resolution method;
•  a summary of the legal issues you disagree on (not personal issues – it is not a list of everything you dislike about the other person or their behaviour towards you);
•  a genuine offer to resolve each of the outstanding issues;
•  a statement of the orders you plan to seek if the dispute resolution process is not successful; and
•  a timeframe (no less than 14 days) for the other party to reply with their counter-offer.

Exchange of documents - pre-action procedure

As part of the correspondence prepared in complying with pre-action procedures, you should have regard to the disclosure of documents requirements under Rule 13.04 of the FLR. However, as a minimum, it is advisable to exchange with all other prospective parties:

• a schedule of assets, income and liabilities;
• a list of relevant documents in the party's possession or control;
• a copy of documents reques ted by the other party; and
• a request for copies of documents held by the other party or authority to inspect documents held by a third party.