If you don’t agree about property and money
Reaching an agreement with the other party offers many advantages, such as:
- you make your own decisions
- you greatly reduce the financial and emotional costs of legal proceedings
- your continuing relationship as parents, if you have children, is likely to work better
- you are able to move forward and make a new life for yourself, and
- you may improve communication with your former partner and be better able to resolve disputes in the future.
If you cannot reach an agreement, you may consider applying to a court for orders. Sometimes, this may be the only way to deal with a dispute.
What you must do before you apply to a court
You must make a genuine effort to resolve the matter by family dispute resolution. In the Family Court, parties intending to apply for financial orders must follow pre-action procedures, which include attending dispute resolution, before filing an application.
In the Federal Circuit Court, parties intending to apply for financial orders are encouraged to resolve disputed issues before filing an application. In most cases, parties will be ordered to attend family dispute resolution when an application is filed with the Court.
What’s the purpose of the Family Court's pre-action procedures?
The aim of the pre-action procedures is to explore areas of resolution, and where a dispute cannot be resolved to narrow the issues that require a court decision. The law about the pre-action procedure in the Family Court is set out in Rule 1.05 and Schedule 1 of the Family Law Rules.
Pre-action procedures are not required for applications solely for child support, or where a case includes the Court’s bankruptcy jurisdiction. Also, the Court may accept that it is not possible or appropriate for the pre-action procedures to be followed in cases:
- involving urgency
- in children’s matters, involving allegations of child abuse
- involving allegations of family violence
- in financial matters, involving allegations of fraud or where a time limitation is close to expiring
- where there is a genuinely intractable dispute; for example, where one person refuses to negotiate
- where a person would be unduly prejudiced or adversely affected if another person became aware of the intention to start a case (for example, where there is a genuine concern that the other person would attempt to defeat the claim if they had this prior knowledge)
- where there has been a previous application about the same issue or subject in the last 12 months, and
- where the is a genuine dispute about either the existence of a de facto relationship, or whether a party's choice to agree to the jurisdiction of the Family Law Act in relation to the property or maintenance of a party to a de facto relationship should be set aside.
More information about pre-action procedures in financial cases can be found in the Family Court brochure ‘Before you file – pre-action procedure for financial cases’ under the Publications section of this website.
What financial orders can you ask for?
You can apply to the Family Court or Federal Circuit Court for orders relating to:
- property – to say how your property, income, financial resources and debts should be shared between you
- maintenance – to provide financial support for a (former) husband or wife, or (former) de facto partner
- child support – in certain circumstances (under sections 96, 116, 123 or 129 of the Child Support Assessment Act). These applications are generally dealt with by the Federal Circuit Court. You should seek legal advice or contact the Child Support Agency on 131272 before making an application in the Federal Circuit Court. For more information visit the Child Support Agency website (www.csa.gov.au) and website links.
For general principles on how a court decides, follow the above left link at 'In this section' to the page titled 'Property and money after separation'.
Where and how do you apply?
You can apply to the Court most appropriate for your case.
The Family Law Courts comprise the Federal Circuit Court and the Family Court of Australia. The courts share jurisdiction in all family law matters and you can apply to either court.
The Family Court deals with more complex matters. These may include financial cases that involve multiple parties, valuation of complex interests in trust or corporate structures including minority interests, multiple expert witnesses, complex questions of law and/or jurisdictional issues (including accrued jurisdiction) or complex issues concerning superannuation (such as complex valuations of defined benefit superannuation schemes).
All other applications should be filed in the Federal Circuit Court. The Federal Circuit Court deals with less complex matters that are likely to be decided quickly.
You may prefer to seek legal advice before choosing the court in which to file your application.
The forms you must use and the processes you must follow depend on which Court you apply to; the courts have different application forms and different requirements associated with filing an application. For further information go to the Forms section of this website, call 1300 352 000 or visit a family law registry near you.