STAGE 1: PRE-ACTION PROCEDURES
Once you have made the decision to separate from your former partner, the next step is to formalise the separation of your assets and financial affairs. This is a process rather than an event.
The main purpose of pre-action procedures is to enable the parties to attempt to reach agreement about the division of their assets without having to go to court.
Pre-action Procedures for financial matters are set out in Schedule 1 of the Family Law Rules. Although strictly it does not apply to matters in the Federal Circuit Court all parties are expected to have followed the pre-action procedures before filing an application in the courts.
The main steps involved in this stage are:
Step 1 – Invite the other parties to participate in dispute resolution
A person who is considering filing an application to start a case must
Step 2 – Provide disclosure documents
Parties to a case have a duty to make timely, full and frank disclosure of their financial circumstances. There may be serious consequences for failing to disclose, including punishment for contempt of court.
Parties should promptly exchange copies of financial documents in their possession or control before as well as after starting a case. Examples of documents may include:
Step 3 – Agree on a dispute resolution service and attend the service
Each prospective party must:
If an agreement is reached, you and the other party may enter into a financial agreement or apply to the court for consent orders.
Step 4 – Written notice of issues and future intentions
then a person considering applying to a court must give the other person/s written notice of their intention to start a court case (notice of claim) setting out:
Step 5 – Replying to a notice of claim
If you receive a notice of claim, you must within the nominated time, reply to it in writing stating whether the offer is accepted.
Where agreement is reached, you and the other party should consider formalising your agreement by entering a financial agreement or filing an application for consent orders.
Where you do not accept the offer, you must set out in a letter:
If you do not respond, the initiating party’s obligation to follow the pre-action procedure ends.
Step 6 – Taking other action
Where an agreement is not reached after reasonable attempts to resolve it by correspondence, other appropriate action may be taken to resolve the dispute, including filing an application in a court.
There are situations where the pre-action procedures will not apply.
For further details please refer to:
STAGE 2: COMMENCING COURT PROCEEDINGS
Once attempts to finalise property settlement without proceeding to court have been exhausted, the main steps to commencing court proceedings are: