The Ex-Files: Jeremy Sutton on backing out of going to court for a divorce settlement

You can change your mind about going to court over a relationship property break-up. Photo / 123rf

OPINION:

Q: Is there an option to file for discontinuance available for an application to divide relationship property? Or does the discontinuance of an application by an applicant only apply to certain types of applications in the Family Court? And does this mean that once a person has applied to divide relationship property, they are automatically unable to back out of the court process and be free to choose to work things out with their partner - without lawyers?

A – It is always best if parties can resolve matters between themselves, even if this is after the Court process has begun. With both parties agreeing to discontinue and agree there will be no costs.

A discontinuance is available for all substantive applications made in the Family Court including an application to divide relationship property. A discontinuance must be filed by the applicant and in some cases the Court may require an affidavit in support to also be filed.

Process

In practice, if both parties agree to the discontinuance (usually because they have reached an agreement to resolve the dispute) a joint memorandum is often filed requesting the discontinuance and stating there are no issues as to costs. This means each party is responsible for their own lawyer’s fees.

Family Court Rules

However, under the Family Court Rules an application for a discontinuance does not affect the determination of costs. This means if an applicant applies for a discontinuance, costs still may be awarded.

So, if an applicant files in the Family Court for division of relationship property and then changes their mind, they may find themselves liable for costs. These costs would be determined by the rules relating to Court ordered costs and would relate to steps taken by the respondent in the proceedings prior to the discontinuance.

Non-court options

There are numerous avenues for parties to resolve their property dispute outside of Court, through alternative dispute resolution or by negotiation. The law requires parties to receive independent legal advice and certification of the agreements before entering into the necessary relationship property agreements required to resolve relationship property disputes.

Risks of not using lawyers

Parties can of course choose to reach their own agreement without lawyers, but if that agreement is not included in a relationship property agreement, then it is open to dispute later on.

Conclusion

The option for discontinuance applies to all family court applications. You can choose to conduct your case without lawyers. The risk in concluding your case yourselves is that the agreement will not be legally binding and it could be determined at a later date. By conducting the case yourselves you will not be as familiar with the process as a lawyer.

- Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.