Under most circumstances, you cannot ask for a property settlement or a parenting order until you complete a process of dispute resolution
For divorcing spouses and couples whose de facto relationship has broken down, Family Law Courts can make orders resolving disputes concerning property settlements and parenting. The courts want couples to resolve those disputes without court involvement.
If you can resolve your dispute through negotiation, you may not need anything from the court, or you may want the court to enter a consent order. A consent order makes your agreement just as enforceable as an order the court enters to resolve a dispute.
Since the court does not want to spend its time deciding issues that parties could resolve themselves, the court makes any party who wants a court order do certain things before filing an application. What you must do depends upon the kind of order you request. This article explains what you will need to do before asking the court to resolve your dispute.
There are two important kinds of orders that a Family Law Court can enter. Either kind can be entered as a consent order if you do not need the court’s intervention.
Financial orders resolve issues concerning money and property. A financial order can determine what property needs to be divided after couples break up (the “property pool”), can set a value on that property, and can decide how that value should be divided between the parties (a “property settlement”). A financial order can also award maintenance to a party who needs financial help after the relationship ends.
Parenting orders address issues involving children. A parenting order can decide where children will live, how much time they will spend with the other parent, how parents will make important decisions about the children, and how parents will communicate with their children.
You must take at least three steps before you apply to the court for a financial order. These are known as “pre-action procedures.” The Family Law Courts can give you a brochure that describes them in detail or you can ask your lawyer about them.
First, you must participate in a dispute resolution procedure with your former partner. Dispute resolution uses a neutral third party who helps you negotiate an agreement. Your nearest Family Court Registry can provide you with a list of dispute resolution services in your area.
You are required to participate in dispute resolution in a meaningful way. In other words, you must negotiate in good faith. If you do not, the court can sanction you when you apply for a financial order.
Second, if dispute resolution fails, you must provide your former partner with a list of the disputed issues as you see them, together with your proposal for resolving those issues. That information must be included in a Notice of Claim that you serve along with a copy of the court’s brochure explaining pre-action procedures. You must also reply to any response you receive from your former partner. A lawyer can help you do that.
Third, before the first court hearing you must exchange specified financial information with your former partner. The court’s brochure will list the documents and information you need to provide.
Unless your safety or the safety of child is at risk, or unless the need for a court order is immediate, you must try to resolve your parenting differences through mediation before you can apply for a parenting order. Your nearest Family Court Registry can give you a list of mediators in your area.
If mediation fails, you must provide the other parent with the Notice of Claim described above. You must also exchange any documents, such as the child’s school records, that are relevant to your dispute.