Resolution Of Family Law Property Settlement

Methods for Resolution

There are 3 recognised methods to resolve Family Law property settlement disputes: —

1. Negotiation directly between the parties or by the family lawyers for each party;
2. Mediation in which an independent person (the mediator) assists the parties (and their family lawyers) to negotiate and resolve the dispute by parties themselves rather than a decision being imposed by a Court;
3. Court making a determination if a resolution cannot be reached by negotiation or mediation.

Steps to Resolution

Firstly it is necessary to determine the values of the assets, liabilities and superannuation benefits to be dealt with in the property settlement.  This can be done either by agreement being reached or the values being determined by a valuation from a registered valuer or expert. To achieve this, a schedule should be prepared which lists the assets, liabilities and superannuation on which each party states the values that they attribute to each item.  The values of assets and superannuation which are not “Agreed” will require valuation to determine the value. The values of liabilities which are not “Agreed” can be determined by the documents evidencing those liabilities. If there is disagreement relating to items which have been included in schedule or items which have not been included in the schedule then each party should consult a family lawyer.

Secondly, each party should obtain an assessment of their entitlement under the Family Law Act from an experienced family lawyer to assist them in their settlement negotiations and also for mediation if mediation is required.  It is important that each party also obtain advice from their accountant or taxation advisor about the taxation effect any proposed settlement may have so that if there are any tax issues then these can be properly considered.

Thirdly, negotiation should take place either between the parties themselves or by their family lawyers, to try to reach a settlement agreement for the distribution of the assets, liabilities and superannuation (and using the benefit of the assessment each party has received from their family lawyer).  

Fourthly, if no settlement agreement is reached as a result of the negotiations then mediation take place.

Fifthly, if settlement still cannot be reached following mediation then court proceedings be commenced.  Although court proceedings are not desirable this may be necessary where settlement cannot be reached by negotiation or mediation and as is often the case the commencement of court proceedings may result in a resolution of the matter being reached by agreement prior to a determination being made by the Court.

Finalising Settlement Agreement

After an agreement has been reached for property settlement (whether by negotiation or mediation) then that agreement should be formalised in accordance with the Family Law Act 1975 so that all claims (present and future) are finalised.  This can be achieved by either Consent Court Orders made by the Court or by making a financial agreement under the Family Law Act 1975.