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Pre-action procedures in property cases

Information about the pre-action procedures you must follow before you can apply for property orders.

Who can apply for finance or property orders?

You and your ex-partner can apply for finance or property orders through the family law process if you were married or in a de facto relationship.

If you weren’t married to, or in a de facto relationship with, your ex-partner, you may still be able to apply for property orders if you can show you were in a close personal relationship. This is a different process that occurs under NSW law.

For more information, see Who can make a finance or property agreement.

What are the pre-action procedures?

If you and your ex-partner can’t agree on how to divide your assets, you must make a genuine effort to resolve your dispute before you can apply for interlocutory or final property orders. There are a number of steps you must take, which are known as the pre-action procedures. These include:

Your obligations

You must comply with the pre-action procedures if:

  • you are considering applying for property orders
  • your ex-partner has applied for property orders and served you with a copy of their Application and supporting documents.

You must comply with the pre-action procedures, unless you are exempt.

While you complete the pre-action procedures, you are expected to act in a sensible and responsible manner.

You must consider:

  • the best way of identifying and resolving the issues in dispute
  • the impact of your correspondence on your ex-partner
  • how to avoid protracted, unnecessary, hostile and inflammatory exchanges
  • how to control legal costs and avoid costs becoming disproportionate to the value of your property pool
  • your duty to make full and frank disclosure of all information relevant to your case.

You must not use the pre-action procedures for an improper purpose, such as to harass your ex-partner or delay the case.

You also must not raise irrelevant issues when corresponding with your ex-partner.

You must also comply with your duty of financial disclosure. For more information, see Financial disclosure in property cases.

You don’t have to comply with the pre-action procedures if you and your ex-partner are negotiating a binding financial agreement. For more information, see Property settlement agreements.

Mediation

If it is safe to do so, you and your ex-partner must:

  • cooperate with one another to agree on a mediation service, and
  • make a genuine effort to resolve your dispute at mediation.

For more information, see Family law mediation.

If you reach an agreement at mediation, you should put your agreement into writing. For more information, see Property settlement agreements.

Notice of intention

Before you apply for property orders, you must send your ex-partner a written notice of intention if:

  • you can’t attend mediation because there is no appropriate mediation service available
  • someone fails or refuses to attend mediation, or
  • you fail to reach an agreement at mediation.

Your notice of intention must include:

  • what issues are in dispute
  • a genuine offer to settle the case
  • what orders you will apply for if your case goes to court 
  • a reasonable time within which your ex-partner must respond to you – this must be no less than 14 days.

If you receive a notice of intention from your ex-partner, you must reply in writing within the time given in the notice stating whether you accept their offer to settle the case.

If you accept the offer of settlement, you should put your agreement into writing. For more information, see Property settlement agreements.

If you don’t accept the offer, you must send a letter to your ex-partner including:

  • your refusal of their offer
  • the issues in dispute
  • the orders you will ask for if your
  • a genuine counteroffer to resolve the issues in dispute
  • a reasonable time within which your ex-partner must respond to you – this must be no less than 14 days.

Exemptions

You must complete the pre-action procedures before you apply for financial or property orders, except if:

  • your case is urgent
  • there are family violence allegations, or a risk of family violence
  • you would be unduly prejudiced if you were required to comply with the pre-action procedures
  • you and your ex-partner have been involved in property proceedings in the same 12 months immediately prior to the commencement of proceedings
  • if the proceeding is a child support application or appeal, or
  • if the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act 1966.

You are not expected to follow the pre-action procedures if:

  • it is not safe to do so, or
  • you have already attempted the procedures to resolve your dispute but were unsuccessful.

Failure to comply

You and your ex-partner must comply with the pre-action procedures before you apply for property orders, unless you are exempt.

The court may find you haven’t complied with the procedures if you don’t:

  • provide sufficient information or documents to your ex-partner
  • respond to any reasonable requests for information or documents
  • attend mediation
  • respond within a reasonable time to a notice of intention to commence proceedings.

If you don’t comply, the court may stay your application for finance or property orders until you have completed the procedures. The court may also make a costs order against you.