pre-action procedure in family law financial cases
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 basically the same with any family law case. It will also have to go undergo pre-action procedures before the court will hear an application for orders.
A pre-action procedure refers to a process that a potential litigant has to undergo prior to 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:
- When there are allegations of child abuse, family violence or there are risks of child abuse or family violence;
- When the existence of the de facto relationship is disputed;
- The application is very urgent;
- Parties have filed a previous application regarding the same issues and cause of action within the last 12 months;
- The issues are genuinely difficult to be the subject of an arbitration, negotiation and conciliation;
- Bankruptcy or fraud is involved;
- The application is of divorce or child support;
- The time limit in applying for a court order is about to expire;
- The applicant will be unduly prejudiced or adversely affected if he is still required to undergo a pre-action procedure.
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.