Filing for property matters - question on date of divorce

[GlassHalfFull]

Thanks all for confirming what I thought but was a little nervous about whether I'd inadvertently already exceeded the period under which I could file in court.

So just to see if there are any other thoughts about what the prospects are if the 12 month limit is exceeded. Is there likely to be a grace period of a few weeks, or is it literally that the day it ticks over 12 months, your chances are of your application being accepted by the court slim unless there's genuine hardship involved? In my case, it's hard to argue hardship, but I've had my reasons for waiting. I have had an active parenting case ongoing, and my lawyer had advised me that she thought that if I brought a property case before the court, it would be combined with the parenting matter, and I wasn't sure how that would work because I wanted to self represent for property but have my lawyer handle the parenting case. So I was hoping that our parenting matter would be resolved before the divorce + 12 months + 1 month and a day was reached. But due to covid and other unforeseen delays, that hasn't happened.

In any case, it does sound like my best option is of course to make the application before the 19th. I've given my ex one last opportunity to agree to a settlement before it goes to court...

 

[Atticus]

In any case, it does sound like my best option is of course to make the application before the 19th.

Definitely the best approach... Just saves you having to first seek leave & satisfy the court of hardship.... The 12 month date from when the divorce took affect is the line in the sand... outside of that day you WILL need to get leave to apply.

 

[Immismum]

I’m sure you know your case best, but if there is no house, and only chattels and super, are you sure you want to do a property settlement? Chattels will only be valued at the price you could get for them if you sold, which is generally bugger all, so you are really only looking at super. If your super is more than hers, then I’d be wary of doing one, as you may end up losing the super you have. I’d only be looking at it if she has substantially more super than you.

 

[GlassHalfFull]

Hi Immismum, yes you're right, but my super is considerably less than hers. She's got about 4 times as much as I do. I've got about $20k (I lived overseas for 12 years, so have not accumulated much), she's got $80-100k+. The offer I made recently was that she give me half the value of the car (which was in my name, but she kept it when we separated) and my personal items back (which she has held onto, she kept everything of mine apart from a few things I could take in the first few days after we separated), and that we would keep our superannuation to ourselves and that she could keep basically all the chattels that were jointly owned. She's (so far) not agreeing to even that very fair offer, so I've given her an ultimatum: agree to this offer of settlement, or I take it to court and keeping our super separate is no longer an option.

 

[GlassHalfFull]

I've just provided my ex's lawyer with "notice of intention to commence proceedings", and based on the information I found on how exactly to do that, I apparently needed to provide them with 14 days in which to respond (cutting it a bit close), a summary of the issues still in dispute and a copy of the "pre-action procedures" document...

Now that I'm trying to get all my documents in order in preparation for filing for court, it seems like we were supposed to provide full and frank disclosure prior to filing. However, given I have just a couple of weeks before the 12 month period expires, I assume that since we didn't (either of us), that it won't be a problem in terms of the initiating application? I assume that prior to the first hearing, that sort of thing should have taken place though otherwise the judge is going to be cranky? What exactly are my obligations?

I had a read of various family/federal circuit court procedural documents and it's not entirely clear about how much needs to have occurred prior to filing and whether it's ok to file and then figure out the details later... I'm happy to do whatever is required but just still a bit nervous given how late in the process we are and the onus effectively being on me to ensure all the boxes are ticked for filing so as to avoid fronting up to court unprepared and being abused by the judge for wasting everyone's time. 😂

 

[Atticus]

I had a read of various family/federal circuit court procedural documents and it's not entirely clear about how much needs to have occurred prior to filing and whether it's ok to file and then figure out the details later.

This might be relevant to your circumstance...

(4) The circumstances in which the court may accept that it was not possible or appropriate for a party to follow the pre-action procedures include cases:

(a) involving urgency;

(b) involving allegations of family violence;

(c) involving allegations of fraud;

(d) in which there is a genuinely intractable dispute;

(e) in which a person would be unduly prejudiced or adversely affected if notice is given to another person (in the dispute) of an intention to start a case;

(f) in which a time limitation is close to expiring;

SOURCE >>>> FAMILY LAW RULES 2004 - SCHEDULE 1 Pre-action procedures

 

[GlassHalfFull]

Thanks Atticus, appreciate it.

I now have just a few more days left to file my application (the 19th of September is Sunday, so realistically I have until this Friday. My ex and her lawyer are potentially still trying to wind down the clock, given we still don't have a deal. I've made a very fair final offer of settlement and I've received a response from the lawyer that they are 'obtaining client instructions'. So I need to ensure that I've done everything I need to and am prepared to file if nothing is forthcoming.

I just wanted to ask a question about interim vs final orders. I have a pretty good idea how parenting matters works in court having been through a couple of years of it, but in terms of property matters, I have no idea if I need interim orders for what is fundamentally not a complex case. If I don't need interim orders, my understanding is that no affidavit is required, which would make things a lot easier than if I have to rush through an affidavit to summarise my entire case as it stands right at this moment.

If all I want is a fairly bog standard split of super and the value of our car which was the only major asset, (chattels are also a minor issue but at fire-sale prices, I probably wouldn't be able to justify a value of over $5-10k), then I assume I can just seek that as final orders and not worry about interim orders. Also, in terms of putting together my application for final orders, how exactly do you suggest I word it? Do I nominate estimated values for the assets (we haven't done full and frank disclosure, but I have an estimate of her super and it's substantially more than I have), or do I simply name the categories of assets and my proposed split of them? I've read an example of final orders but they seem to focus mainly on property titles and real estate agency commissions, and who should remain in the home until it's sold etc.

 

[Rod]

Only file interim orders if something is needed to be done in the short term.

If nothing needed in the short term, no interim orders are needed.

 

[Complex3]

I’d have thought you’d require an affidavit for property outlining who brought what in to the relationship, why you seek the orders you do ie. future needs and earning capacity - of which parenting may be a relevant factor ie support of the children moving forward. If she has more super is that because she’s earnt more etc.


interim orders would just be F&F disclosure so ask the court to direct parties to exchange by x date.

I’m no professional but just going by what my solicitor prepared for property proceedings.

It does seem like there isn’t a lot to split however… so I’d be mindful of the amount you may spend vs the reward and the stubbornness of an unwilling party on your quality of life. Just my 2 cents.

 

[Atticus]

do I simply name the categories of assets and my proposed split of them?

I would be inclined to go this way... As per @Rod regarding interim orders...

I think your bigger problem may be around not satisfying pre action procedures..... Are you aware that new rules came into affect on September 1 this year?

See here >>> https://www.legislation.gov.au/Details/F2021L01197 Part 4.1 covers pre action requirements... Part 4.04(1)(b) covers consequences for failure to comply... the court may stay the application, on its own initiative or on the application of the respondent, until the applicant complies with the pre‑action procedures. That may not be a bad outcome anyway because you may be able to reach an agreement with your ex.

You nee to file a Genuine Steps Certificate with your application... You can seek an exemption at part B (4)...

Also have a read of the updated practice directions >>> Family Law Practice Direction – Financial proceedings | Federal Circuit and Family Court of Australia

As far as property proceedings go, once you have a case filed, you do have the option of filing an 'application in proceedings' to include super if you haven't yet got the required information from her fund