A pre-action procedure is necessary to help parties settle the case and avoid going to court. If no settlement is reached, the procedure helps parties to identify and define issues. A financial dispute between spouses and de facto partners is treated the same with any family law case. It will also have to undergo pre-action procedures before the court hears an application for orders.
A pre-action procedure refers to a process that a potential litigant has to undergo before instituting an action in court. In family law, a family dispute resolution (FDR) is a pre-action procedure which all parties with a family law dispute have to undergo before filing a case in court.
The applicant of a court order must manifest his intention to the other party of his willingness to settle the dispute by delivering a copy of the FDR. The copy is an invitation to the other party to participate in the FDR process which includes arbitration, negotiation and conciliation. It is at this point that the parties can discuss and bargain for the terms and conditions that they can include in an agreement. They may make offers and counteroffers for which they may set a deadline for the other party to reply.
The applicant must clearly state his intention to the other party that he will commence court action if the FDR is unsuccessful. So the applicant must inform the other party of the orders that he will be asking from the court.
During the FDR, only the relevant legal issues must be discussed. The parties must disregard the personal issues. Thus, in an FDR for a financial case, only matters pertaining to properties, assets and liabilities must be part of the discourse. The parties can agree on the ownership, sharing and division of their properties and provisions for spousal maintenance.
A pre-action procedure applies to almost every family law case unless it is under the exceptions that are provided by the law. If any of the following circumstances exist the parties are not required to pursue a pre-action procedure in a financial case: