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Trying to Reach a Property Settlement? What if we still can't agree?

If you can't agree about how your property should be divided up then you must think about applying to the Court so that these matters can be sorted out.

Filing an Application for Court Orders (Final Orders - FORM 7)
You must file your application for property orders within 12 months after your Dissolution of Marriage (Divorce) has become final. You will see this date on your Decree of Dissolution of Marriage.This is called the Decree Absolute.
The Family Court is able to extend the 12 month time limit, but it will only do this if there is a good reason. First, some terms you should know:

Useful Terms to Understand
  • The Applicant is the person who starts a case.
  • The Respondent is the other person in the case. The Respondent can also seek Orders against the Applicant if there is disagreement. A Respondent is anyone or any company etc that the Applicant is seeking an Order against.
  • Service of the document is when one person in the case gives documents to anyone else as part of the case.
  • A seal is the official stamp of the Court. If a document has a seal on every page then you know that it is a proper court document.
  • The file number is the number that the Court uses to keep all of the documents in your case together in the one file.Every document in your case will have a file number. Before you serve a document in the case you must file it. This means that you take or send the original and a copy to the Court. Always keep a copy for yourself. The Court will put the seal on the document and keep the original. The Court will give you back the copy so that you can arrange for it to be served. You must put the file number on EVERY document and letter that you use, send or file in your case.

    If the Applicant or Respondent has a lawyer then you must serve all of your documents on the solicitor by sending them to the lawyer's office. Normally, you should say anything that you want to say about your case to that lawyer.

    Will the Family Court help me?
    The Court is there to help you reach agreement or make a decision in your case if you can't agree.

    Information brochures - Whether you are the Applicant or the Respondent, you will receive two brochures from the Court. One is called Marriage, Families and Separation and the second is called Mediation Services: Pathway to Agreement. Both of these brochures are very useful and you should read them carefully.

    Information Sessions - You should go to an information session at the Family Court. See if mediation can help you both come to an agreement. You should try as hard as you can to reach an agreement about division of your property.

    But how do I write the Orders I want?
    The Court can make many different Orders. You must think very carefully before you decide which Orders you will ask the Court to make.You must make sure that the Orders in your application mean what you want them to mean.The Family Court will often refer to you both as "Husband" and "Wife". This will happen even if you have been divorced. Otherwise, the Court will refer to you both as "Applicant" and "Respondent." There are a number of things to bear in mind about writing the Orders. These matters help make the Orders clear and workable.
  • A Family Court Order tells people what they should do or should not do. So in your Orders, you should ask the Court to order that a person do things or not do things.
  • You must make sure that you include time limits in your Orders. This does not mean that you don't trust each other. It makes the Orders clearer so that they can work to help you.
  • You should try to mention specific dates in your Orders rather than periods of time. This again makes the Orders clearer.
  • If you both own a home and you want it sold, you ask the Court to order you both to sell the house and how to sell it. You must also include whether you will sell the home now ("forthwith") or at some later time, for example, when a child turns 18.
  • Sometimes, if people are worried about how long the sale will take, they will allow some months, (often three) to try and sell the property for an amount that is agreed upon. If you can't agree on a price then the Order can provide for a real estate valuer or estate agent to give a sale price.Normally, the Order will then have a provision saying that if the property has not sold, you will sell it at an auction for the best price that you can get.If you are going to sell the house, you will need to make an Order about what you want to happen with the money that you get from the sale (the "sale proceeds").
  • Sometimes there may be a problem about how an Order is working. It is a good idea to be able to come to the Court to change the Order. This lets you make sure that the Order operates the way that you both want it to.

    An example of Orders
    If we take an example of a situation where:

    • you both own a home at 2 Solution Street, Courtville that is worth $120,000;
    • you agree to sell it and split the sale monies evenly;
    • the house has a mortgage owing to the Court bank;
    • the applicant has a bank account with $30,000 in it and you agree that you will split this account so that the respondent receives $10,000 and the applicant keeps the rest;
    • you will each keep the car that you use;

    then an example of the Orders might be:

    1. That the Applicant and Respondent immediately do everything necessary to arrange for the property at 2 Solution Street, Courtville to be sold by private treaty for the sum of $120,000 or whatever sum the parties agree on.

    2. That if the property has not been sold on or before the (date), each party will do everything necessary to arrange for the sale of the property as soon as possible by public auction at the best price that can be reasonably obtained and, for the purposes of the sale, in particular, will:
    a) place the property with (the name of the auctioning agent), [the auctioneer] for the sale;
    b) execute all documents required by the auctioneer for the sale;
    c) request the auctioneer to recommend a reserve price to be placed upon the property for the purposes of the sale and accept the recommended reserve price;
    d) each pay one half of any sums requested by the auctioneer for advertising expenses in relation to the sale;
    e) give all the necessary instructions to a lawyer (or other person) for the preparation of a contract for sale, and for the contract to be made available to the auctioneer before the sale;
    f) attend the sale and negotiate with the highest bidder in case the reserve price is not reached, and accept the auctioneer's advice about whether to accept a price lower than than the reserve price;
    g) execute the contract for sale;
    h) co-operate with the auctioneer over the sale, including making a key available, so the property can be inspected at all times the auctioneer asks for, and ensuring that the property is neat and clean when prospective purchasers are inspecting it;
    j) execute all documents necessary to complete the sale.

    3. That immediately after the property is sold, each party will arrange for the proceeds of the sale to be paid in the following way and in this order:
    a) The amount required to discharge the mortgage in favour of the Court Bank;
    b) The agent's commission and auction expenses, if any, due on the sale;
    c) any legal costs of sale;
    d) Any sums outstanding to the Respondent under Order 5 of these Orders;
    e) The balance to be divided equally between the parties.

    4. That the person who is occupying the property pending sale, does everything necessary to ensure the punctual payment of all instalments of principal and interest due under the mortgage in favour of the Court Bank once the property has been sold, or until the discharge of the mortgage, whichever happens first .

    5. That on or before the (date) the Applicant pay direct to the Respondent the sum of $10,000 by way of property settlement .

    6. That other than as provided for above in these Orders, the Applicant and Respondent are the sole owners of all items of property in their respective possession or control.

    7. That each party has liberty to apply for these Orders to be implemented on 14 days notice to each other and to this court.

    There are many different situations that may arise in this example, that are not covered in this set of Orders. This is why you really should get legal advice on how the Orders should be phrased in your particular case.

    As we have already pointed out, Court Orders provide many benefits. It is important to make sure that they are phrased in the best possible way.

    Filing a Court Application
    You will find the details of the procedures of the Family Court in the Family Law Rules and the Case Management Guidelines.The forms used in the Court are also in the Rules.To start a case, you must file a document called an Application for Final Orders (Form 7).

    In the Application for Final Orders, you set out the Property Orders that you want. The first time that you or the Respondent file documents in the Family Court, you must file an original or proper copy of your Marriage Certificate, or of your Decree of Dissolution of Marriage.If you cannot file the Certificate or Decree with your application, then you must file an Affidavit (Form 16) explaining why not. You must also give a solemn promise (called an undertaking) to the Court that you will file one.

    When you file the Application, you also file a document that sets out your financial situation. This is called a Financial Statement (Form 17). You can get this document from the Family Court.The matters you must give details about when you disclose your financial affairs are set out in Order 17 of the Family Law Rules.You must be completely honest in everything to do with this case. If you are not completely honest, then the court may think that it cannot believe the evidence that you give. This can seriously hurt your case.

    When you file the documents, the Court will put its seal on every page of the document and a date and time on the top of the first page. This is the date and time that the case is going to Court.

    Then you must arrange for someone else who is at least 18 years old to serve the papers on the respondent. After the documents are served, the person who served the documents should fill out an Affidavit of Service (Form 22) for you. You use this Affidavit to prove that the documents were served on the respondent.

    You should now start collecting all your financial records. Collect all the documents you can which prove the financial history of your marriage and your current circumstances. These can include taxation returns, bank statements, group certificates, share transfers, superannuation records, contracts for purchase of property as well as any other financial documents which relate to your circumstances.

    What does a Respondent do?
    If you are the Respondent, there are a number of things that you must do.

    When you are served with the documents from the applicant, you may be asked to sign a document called an Acknowledgment of Service (Form 19). This confirms that you have received the application. Normally you should sign the document unless you have a particular reason for not signing it.

    The first thing that you must do is file a Notice of Address for Service (Form 18). You can get one of these from the Court.
    This document shows an address where a person who is a party to the proceedings can send you court documents. It means that the Applicant will not need to serve you with court documents in public.

    If you want Orders that are different to the Orders that the Applicant is seeking, then you will need to tell the Court the Orders that you want. You do this by completing a document called a Response to Application for Final Orders(Form 7A).

    You will also need to file a Financial Statement (Form 17). Just like the Applicant, you must be completely honest in everything you do in this case or your case can be seriously affected.

    The Response and Financial Statement should normally be filed and served at least seven days before the date when the case is going to court.

    Attending an Information Session
    After the application has been filed but before the case goes to court, you must attend an Information Session at the Family Court. You must have a very good reason not to attend.The Information Session helps you to understand what happens at court. It also explains the steps that you must take before the Court will make final Orders in your case.

    You also find out about other things that you can do to try and reach agreement without having to go to court.


    What if we agree after the case has been started?
    If you both are able to agree on how to divide your property, then at any stage of the case, the Court can make orders.If there is agreement, then you write down the agreement in a document called "Terms of Settlement". You both sign this document.The Terms of Settlement is a very important document because it is telling the Court which orders it should make so the case can come to an end.

    Before signing the document, you must read it very carefully and make sure that you agree to everything in it and that all of the agreement is there.

    Don't only have part of the agreement in the Terms of Settlement because there may be a misunderstanding later about what was agreed.You should think about getting a solicitor to look at the Terms of Settlement before you sign it so that you can make sure it is O.K.

    Once the Court makes the Property Settlement Orders, you cannot come back later to change them if you do not like them any more or you have changed your mind. The Court can only change the Orders if there are very special circumstances or if you both agree.

    The Court Details

    At the top of the application on the right hand side you will see important information including:
    a) The name of the Court that you must attend,
    b) The address of the Court,
    c) The date and time that your case will come before the Court,
    d) The file number of your case.

    It is very important you make sure that you attend Court at the date and time set out on the document. If you don't attend, then a Costs Order may be made against you.If you cannot go to Court on that day, then you should write a letter to the Applicant or Respondent (as appropriate) and to the Court explaining why you cannot go. You must give as much notice as possible (at least 24 hours).

    The Case Management Guidelines
    The Court has a number of procedures and steps that are followed once a case has been started. These are called the Case Management Guidelines.The purpose of these guidelines is to explain the steps that the Court takes after an application has been filed. Whether you are an applicant or a respondent, you should read these guidelines.You can find them in Practice Direction No. 1 of 1997. You can get a copy from the Family Court.

    Once you have read them, you will have a better understanding of what you must do to make sure that your case proceeds properly. You will also understand the steps that the Court takes to help parties resolve their dispute.

    First Court Date: The Directions Hearing
    What happens at court?
    On the first day that you go to Court, your case will be one of a number of cases on that day. You must look on the court list that is near the entrance to the Court to see which number your case is.Whether you wait inside or outside the courtroom, you must listen to the Court Officer so that you know when it is your turn. When it is your turn, you should follow the Court Officer who will show you where to stand. In some courts you will stand at a long table called the Bar Table. In other courts you will stand at a microphone.

    In the Family Court, the Registrar of the Court will conduct a Directions Hearing. The Registrar will ask questions about the case to see if there is some way that you both can reach agreement. Sometimes you will all be sent outside the courtroom to discuss the matter to see if you both can reach an agreement.

    If you are able to reach an agreement, then you can prepare Terms of Settlement and have orders made that day. Alternatively you can have the matter adjourned so that you can get legal advice and have the orders made on a later date.

    If you both cannot reach agreement at that stage, the Court will direct a number of steps to be taken. You must keep an accurate record of these directions to be sure you comply with them.

    The Registrar will make a direction that both parties go to a Conciliation Conference. See below

    If we still can't agree do we have to leave it up to the Court?
    At any stage after the court case has been started, you can both still go to     mediation to try and get the disagreement sorted out without leaving it up to the Court.The Court encourages parties to try and resolve their dispute. Most cases that start in the Family Court are resolved by the parties reaching an agreement.

    Conciliation Conference
    If you both are unable to reach agreement, unless there are very special circumstances, you both must go to a Conciliation Conference.If the conference cannot go ahead for some reason, the Registrar will often adjourn the conference to another day. In addition, the Registrar can make an order for costs against the party who caused the adjournment.

    You must understand that you are both required to try and reach agreement. It is important that you do not see the conciliation conference as a burden, but rather as a real opportunity to try and get this case sorted out without the need for a court hearing.

    Before you go to the conference, you must fill out a document called Conciliation Conference Particulars (Form 17 A). You can get this from the Court. Each of you must serve this document on the other party at least seven days before the conference and make sure that a copy goes to the Registrar at least three days before the conference.

    You should also take any documents that will help everyone at the conference to understand your financial circumstances. If they can't understand your finances or you are unable to answer their questions, it makes it almost impossible to reach agreement. The Case Management Guidelines contain a list of the financial documents you must bring to a conciliation conference.

    The Registrar conducts the conference in a room at the Court. You both sit in the room with a Registrar who talks to you about the case. You both get the chance to talk about why you are having trouble agreeing about the case.The Registrar will help you understand what the Court might do in your case.

    If there is a special reason like:
    a) one of you has a court order to stay away from the other,
    b) there has been family violence,
    c) one or both of you live too far away to make it reasonable for you to come,
    then the Registrar can make special arrangements so that the conference can go ahead. For example the Registrar can hold the conference by telephone or in separate rooms.

    After you have all finished, the Registrar will then usually ask you both to go outside to think about whether you both might be able to reach an agreement. If possible, you should talk and see if you are both prepared to compromise.The Registrar will then talk to you both again to see if you can reach agreement.If you agree, the Registrar can make orders that day. Alternatively, the Registrar can adjourn the case so that you can get legal advice or take more time to think about the matter and if possible, sign Terms of Settlement later.

    When the conference has finished, you get your Conciliation Conference particulars back from the Registrar. Unless there are really unusual circumstances the contents of the Conciliation Conference particulars cannot be used in any court.If you can't agree, the Registrar will then usually fix a date for a Pre-Hearing Conference.

    The Pre- Hearing Conference
    You both must attend this conference unless there is a very good reason. If there is a special reason why one of you cannot come to the conference then the Registrar might make special arrangements to make sure it can take place.The Pre-Hearing Conference takes place in front of a Registrar. It has two main parts.The first part is to see if there is any chance that the parties can reach agreement. This part of the conference is like a Conciliation Conference.If you both still can't agree then the Registrar starts the second part of the conference.

    The second part of the conference is when the Registrar tries to make sure that the case can be made ready for a court hearing.

    You must be able to tell the Registrar things like:
    a) The names of any witness that will give evidence as part of your case;
    b) When those witnesses are available;
    c) Whether you think the case has a chance of being settled;
    d) How long you think the court hearing will take.

    The Registrar will then give the case a date or an approximate date for the hearing.The next step is that the Registrar will make a number of directions to both parties about the case to make sure it is ready to start on the hearing day.

    These directions are about things like:
    a) Updating any of the court documents that have already been filed;
    b) Preparing and filing your affidavit and affidavits of any witness that you want to give evidence as part of your case;
    c) Getting valuations or market appraisals of different assets that are part of the case where both parties cannot agree on their value.

    If by the end of the pre-hearing conference you have still been unable to reach an agreement, then your case will need to be heard by the Court.Even if the Registrar has set the case down for hearing you are still able to reach an agreement and sign Terms of Settlement before the hearing.If the case must go to a hearing, then you must prepare it properly. There are a great number of things that you must consider and do to make sure that you are ready for the hearing.

    You should now seriously consider seeing a lawyer and obtaining legal representation for your case.If you decide to appear for yourself at the hearing, you must do everything you can to prepare your case properly.The Family Court will do its best to make sure that you are treated fairly in a hearing. A judge however, cannot give you legal advice.

    You must remember that the Court uses the information from this hearing to make the orders for settlement of property.

    You can both sign Terms of Settlement and have orders made by consent at any time before the judge makes the court orders at the end of the case. This means that you must keep on trying to see if you can reach agreement.You must try to reach agreement if you can. This allows you both to control your financial affairs rather than having the Court impose a result that may make neither of you happy. Next Step: The Court Hearing

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    The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in, or affected by, the laws of New South Wales, Australia only.

    most recently updated 22 June 2000