On 1 September 2021, the law changed to prevent one party from commencing property proceedings under the Family Law act unless there has been a “genuine attempt” at resolving the dispute.
The genuine attempts required at law include:
- Both spouses comply with their obligation for “full and frank financial disclosure”;
- Either a mediation occurs or an offer has been made to mediate that has been rejected.
There are some limited exceptions to commence proceedings without engaging in disclosure or mediation. The main exemption is where there are urgent circumstances. “Urgency” in the eyes of the court would involve the need for orders to be made on an urgent basis to preserve assets or to prevent assets from leaving the jurisdiction.
It is important before anyone participates in a mediation to obtain proper legal advice. For property mediations, there is no starting or finishing point being an automatic 50% adjustments to each spouse. The property adjustments rights of spouses depend on a number of variables including (but not limited to);
Before anyone seeks to attend a mediation about property after separation, ensure that they seek legal advice.
- the length of the relationship;
- whether there are children of the relationship;
- if the children are under the age of 18 whether or not one party has predominant care of the children;
- whether one or both spouses has received any significant payments such as inheritances or gifts and whether or not there are corroborative records to confirm those payments.
The list above is not exhaustive and there are a multitude of factors that can influence the extent of property adjustment in favour of either spouse. It is critical to obtain legal advice based on provable facts to form the basis of any property settlement negotiations (including in mediation).Before anyone seeks to attend a mediation about property after separation, ensure that they seek legal advice.
This article was published on 07/11/22 and the information is valid only to the date of publishing. This article should be considered merely general and non-specific on the subject matter and is not and should not be considered or relied on as legal, advice. Meehans Solicitors is not responsible in the event this information is relied upon by the reader in the absence of specific legal advice.