Finances and property: We cannot agree

If you and the other party (usually your former spouse or former de facto partner) cannot agree over financial matters, after attempting other dispute resolution or mediation, you can apply to the Court for orders.

Limitation periods (time limits)

Limitation periods (time limits for applying to the Court) apply to most financial proceedings. The relevant time limit depends on whether the potential proceedings arise out of a marriage or a de facto relationship.

• If the potential proceedings arise out of a marriage, you must apply within 12 months of a divorce order taking effect (or decree of nullity being made) in relation to the marriage.
• If the potential proceedings arise out of a de facto relationship, you must apply within two years of the breakdown of a de facto relationship.

These limitation periods do not apply to applications which seek only

• declarations of existing property interests, or
• to vary, set aside or revive existing property settlement or maintenance orders.

If you want to start financial proceedings out of time, you must ask the Court for leave to apply out of time, by seeking an interlocutory order, together with an Affidavit – Family law and child support stating the facts relied on in support of the application for leave (see How do I apply for property and financial orders?).

Before you apply

Compulsory pre-action procedures

Before you apply to the Court for financial orders, you have to comply with pre-action procedures, unless an exemption applies. 

The pre-action procedures also apply to potential respondents. This means that, if the other party (usually your former spouse or former de facto partner) contacts you about financial matters arising out of the marriage or de facto relationship, you have to comply with pre-action procedures, unless an exemption applies. 

The aim of the pre-action procedures is to see whether the dispute as a whole, or at least parts of the dispute, can be resolved by agreement. This should reduce costs and if possible, resolve disputes quickly, ideally without the need to apply to the Court.

What is required?

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules) require prospective parties to genuinely try to resolve their dispute before starting a case. Unless an exemption applies, you must:

• Participate in dispute resolution services, such as Family Dispute Resolution counselling, negotiation, mediation, conciliation or arbitration.
• If dispute resolution is unsuccessful, write to the other party (or parties), setting out your claim, and exploring options for settlement.
• Comply, as far as practicable, with the duty of disclosure.

Duty to make full and frank disclosure

Parties to a case have a duty to make timely, full, and frank disclosure of all information relevant to the issues in dispute. There may be serious consequences for failing to disclose, including punishment for contempt of court.

In summary, parties should promptly exchange copies of documents in their possession or control relevant to an issue in the dispute before as well as after starting a case. Examples of documents may include:

• a schedule of assets, income and liabilities
• a list of documents in the party’s possession or control that are relevant to the dispute, and
• a copy of any document required by the other party, identified by reference to the list of documents.

In particular, parties are encouraged to refer to the Financial Statement and rules 6.03, 6.05, and 6.06 as a guide to what information to provide and documents to exchange.

Rule 6.14 sets out documents that do not need to be produced. These include documents where there is a claim for privilege from disclosure or documents that have already been disclosed, and where there has been no change likely to affect the result of the case.

The documents that the Court would consider as appropriate to be exchanged include:

In a spousal or de facto maintenance case

• the party’s taxation return and Notice of Assessment for the most recent financial year
• the party’s bank records for the previous 12 months
• if the party receives wage or salary payments, the party’s most recent pay slip
• if the party has an Australian Business Number, copies of the last four business activity statements lodged, and
• any other document relevant to determining the income, expenses, assets, liabilities and financial resources of the party.

In a property settlement case

• the party’s three most recent taxation returns and Notices of Assessment
• documents about any relevant superannuation interest, including:
  
  • the completed Superannuation Information Form
  • for a self-managed superannuation fund, the trust deed and the last three financial statements, and
  • the value of the superannuation interest, including how the value has been calculated and any documents working out the value
• if the party has an Australian Business Number, the last four business activity statements lodged
• for a corporation (business), trust or partnership in which the party has an interest, copies of the three most recent financial statements (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) and the last four business activity statements lodged by each corporation, trust or partnership
• for any corporation, its most recent annual return, listing directors and shareholders and the corporation’s constitution
• for any trust, the trust deed
• for any partnership, the partnership agreement, including amendments, and
• unless the value is agreed, a market appraisal of any item of property in which a party has an interest.

Where a party is unable to produce a document for inspection, it is reasonable for the party to be required to provide written authority authorising a third party (for example, an accountant) to provide a copy of the document to the other party, where this is practicable.

Parties should agree to a reasonable place and time for the documents to be inspected and copied at the cost of the person requesting the copies.

Parties must not use a document disclosed by another party for any purpose other than to resolve or determine the dispute for which it was disclosed. That is, in seeking the documents through the pre-action procedures, the party receiving them is considered by the Court to have given an undertaking that they will be used for the specific purposes of the case only.

Where there are disagreements about disclosure, it may be appropriate for an application to be filed with the Court.

What if someone does not comply?

Anyone who fails to comply with the compulsory pre-action procedures (in circumstances where no exemption applies) risks serious consequences, including costs penalties. The Court may:

• where there is unreasonable non-compliance, order the non-complying party to pay all or part of the costs of the other party or parties in the case, and/or
• take compliance or non-compliance into account when making orders about how your case will progress through the Court.

In addition, the Court may ensure that the complying party is in no worse a position than they would have been if the other party had complied with the pre-action procedures.
Examples of non-compliance with a pre-action procedure include:

• not sending a written notice of proposed application
• not providing sufficient information or documents to the other party
• not following a procedure required by the pre-action procedure
• not responding appropriately within the nominated time to the written notice of proposed application, and
• not responding appropriately within a reasonable time to any reasonable request for information, documents or other requirements of this procedure.

What are the exemptions?

You are exempt from the compulsory pre-action procedures for financial cases if one of the following applies:

• the proceeding involves allegations of family violence, or a risk of family violence
• the application is urgent
• you would be unduly prejudiced (in other words, your case would unfairly affected) if you were required to comply with the pre-action procedures
• there has been a previous application in the same cause of action in the same 12 months immediately before the start of the proceeding
• the proceeding is a child support application or appeal, or
• the proceeding involves a court’s jurisdiction in bankruptcy.

See rule 4.01(2).

More information

For further details about pre-action procedures in financial cases, including a step-by-step guide, read the fact sheet Before you file – pre-action procedure for financial cases.

How to apply

If you have not been able to reach an agreement after dispute resolution, you can make an application to the Court for orders. Before starting an application, see the Family Law Practice Direction – Financial proceedings, which sets out the procedural requirements and steps in proceedings about financial matters.

For information about filing requirements and a step-by-step guide to applying for financial orders see How do I apply for property and financial orders?

NOTE: You may meet the criteria for Priority Property Pool Cases (PPP Cases) if:

• you are seeking financial orders only, and
• the net value of the property of the parties (excluding superannuation interests) is, or is likely to be, less than $550,000, or 
• the net value of the property of the parties (excluding superannuation interests) is not significantly greater than $550,000 and the Court, in its discretion, makes a declaration or notation that the proceeding is designated as a PPP Case.

PPP Cases have a streamlined case management pathway that aims to find the simplest, quickest, and most cost-effective process to finalise the case. For more information about the criteria and filing requirements for PPP Cases see, Priority Property Pool Cases. 

New proceedings

If you are starting new court proceedings, you need to decide whether to ask the Court to make only final orders, or final and interlocutory orders.

To start court proceedings, you must pay the relevant fee and file:

1. an Initiating Application (Family Law) setting out the orders you are asking the Court to make
2. a Financial Statement
3. a Genuine Steps Certificate
4. a Financial Questionnaire, unless you file an affidavit, and
5. if you are asking the Court to make interlocutory orders, an Affidavit – Family law and child support in which you set out the facts in support of your application for interlocutory orders.

If you start proceedings, you are known as the applicant and the other party is known as the respondent.

When there are already proceedings about children

If you are already a party to court proceedings about parenting orders in which nobody has applied for financial orders, you can add an application for financial orders to the existing proceedings. 

If you are in the applicant in the existing proceedings, you can apply for financial orders by amending your Initiating Application (Family Law) to seek financial orders. The requirements for amending a document are set out in Part 2.8 of the Rules. A further filing fee will apply. You must also file all of the documents which are required to be filed when starting new proceedings for financial orders, except the Initiating Application (Family Law).

If you are the respondent in the existing proceedings, you can seek financial orders in your Response to Initiating Application, even if the applicant only applied for parenting orders. In addition to the documents that you must file when responding to an application for financial/property orders, you must file all of the documents which are required to be filed when starting new proceedings for financial orders, except the Initiating Application (Family Law).

If you have already filed a response, you can apply for financial orders by amending your Response to seek parenting orders. The requirements for amending a document are set out in Part 2.8 of the Rules. A further filing fee will apply.

What do I need to pay?

Fees apply when filing an Initiating Application (Family Law) or Response to Initiating Application. The fees vary, depending on the types of orders you are asking the Court to make. Other fees may also apply during the course of your proceedings.

For the current fees, see Fees.

In some cases, such as if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee or fee exemption. For more information see the Guidelines for fee exemption, reduction and refund.

The Court does not set the fees payable. Court fees are set by Federal Government Regulations.

Filing with the Court

Applications to the Court, should be eFiled online through the Commonwealth Courts Portal. 

For more information about filing requirements and a step-by-step guide to applying for financial orders see How do I apply for property and financial orders?

My matter is urgent

See My application is urgent.

Service

After you have filed your documents, you need to serve them on the other party.

For information on what you need to do to serve your documents, see the Service Kit and the step-by-step guide How do I serve family law documents?.

Legal advice

You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders or applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.

For information on how to get legal advice, see Legal Help.