Property settlement - Pre-action procedures

Pre-action procedures are steps the law requires people who are separating to take before starting a property case in the Family Court. The aim of pre-action procedures is for people to make a genuine attempt to work out their property dispute outside of court. 

The requirements apply to everyone, but there are some situations the court may accept there is a good reason for someone not completing pre-action procedures. For example, in cases where there has been family violence separating couples will not be required to attend dispute resolution.

This page has information which may help if you or your ex-partner are considering starting a property case in the Family Court. Find out:

  •  what you need to do before starting a property case court case, and
  •  when you may not be required to complete the pre-action procedures. 

What do I need to do before starting a property court case?

The steps you need to take before going to court are set out in Schedule 1 of the Family Law Rules 2004 (Cth).

There are 3 pre-action steps that need to be completed:

1. Disclosure (sharing information about property and finances).

2. Dispute Resolution (for example, negotiating with your ex-partner or attending Family Dispute Resolution or arbitration).

3. Exchanging letters with your ex-partner about offers to settle the property dispute.

If you make a genuine effort to complete Step 1 and 2 but are unable to reach an agreement you are required to write to your ex-partner (you can do this yourself or with help from a lawyer). 

You will need to send a letter or email setting out the following:

  • you intend to start a property court case
  • the issues you and your ex-partner have been unable to agree about
  • what orders or outcome you want from the court
  • a genuine offer to settle the property dispute, and
  • the time you want your ex-partner to respond within (you need to give them at least 2 weeks to respond).

Your ex-partner is required to respond setting out the following:

  • the issues which are still in dispute
  • what orders or outcome you want from the court
  • a genuine offer to settle the property dispute, and
  • the time they want you to respond within (they need to give you at least 2 weeks to respond).

If you are able to reach an agreement at any stage during the pre-action procedures, you should consider formalising your agreement by making an application to the Family Court for consent orders.

If you are unable to reach an agreement following completing the pre-action procedures then you may wish to commence a property court case in the Family Court. 

Situations where you may not be required to complete pre-action procedures

In some situations, the court may accept there is a good reason for someone not completing pre-action procedures. For example, in cases where there has been family violence or there is a risk of family violence where attending dispute resolution is not appropriate. 

Some other examples of when the court may not require separating couples to complete the pre-action procedures include:

  • if the matter is urgent (for example, if your ex-partner has threatended to sell or hide assets)
  • if there are allegations of fraud, or
  • if the time limit for starting a property case in the Family Court is close to expiring.
Consequences for failing to follow pre-action procedures

There can be serious consequences if you don't follow the pre-action procedures including:

  • not being allowed to continue your court case until you have completed the pre-action procedures, or
  • having to pay some, or all, your ex-partner's legal costs.

More Information

The Family Court of WA website provides more information about pre-action procedures. 

 

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.