Although mediation is not compulsory in property disputes (other than after Court proceedings have commenced), it should be considered before Court action is commenced.
Making a property settlement without the court’s assistance
Settlement negotiations may also take place by way of a round table conference, where the parties and their Solicitors have direct upfront negotiations with each other.
It is very important to obtain information and advice from an experienced family lawyer early in the settlement dispute and often it is recommended advice be received prior to or immediately following separation.
Significant costs may be incurred by a party in an attempt to settle or negotiate a matter where the other party is not responding to those actions. An experienced family lawyer will advise you when to stop attempted settlement discussions and when to commence Court action. Some people and some matters only respond to litigation. This is very unfortunate, however it is far better to learn this sooner rather than later.
If an agreement is reached between former spouses prior to or during Court action, consent orders would usually be prepared by one of the Solicitors. The consent orders are signed by the parties and their Solicitors and lodged with the Court. The Judge (or Magistrate in the Local Court) will make orders in chambers without the need for a Court appearance. The Judge, however must be satisfied the consent orders are properly drafted and represent a fair and equitable resolution of the matter.
Sometimes if parties reach an agreement without Court proceedings being commenced their Solicitor may recommend they formalise the agreement in writing by way of a Binding Financial Agreement (“BFA”) rather than consent orders.
There are stamp duty savings on the transfer of real estate and personal items between the parties where settlement has taken place by way of consent orders or BFA.
In a contested property matter which is progressing through the Court stages, mediation is ordered by the Court to take place. This may occur by way of one of the Court’s Registrars’ conducting a Conciliation Certificate or by an approved private mediator conducting external mediation.
As with contested parenting matters, legal costs and delays in litigated property cases are significant. When considering settlement of a property matter a party must always take into account the costs they have incurred to date and the costs of progressing the matter further by Court action. Making settlement decisions is like making a business decision. Continuing with Court action because “of the principle of the matter” is usually a very expensive and ultimately unrewarding experience.
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