Separated couples can use family law mediation (also known as divorce mediation) to divide their property and to resolve all financial issues between them. It’s a cost and time-effective way to avoid court proceedings, accompanied by less conflict and stress.

What is property in family law?

Property is defined broadly in family law, including any assets of the relationship (such as bank accounts, superannuation, and real estate) and debts (such as personal loans, credit card debt and mortgages).

In some circumstances, property acquired before the relationship or after separation is also included in the property pool.

Who can participate in property settlement mediation?

Separated parties can participate in a property settlement mediation, regardless of whether they are opposite-sex or same-sex, de facto or married.

You and your former partner must make a genuine effort to resolve your property issues before applying to a court for a property settlement. This can be done through family law mediation.

Parties can mediate any time after separating, but it is generally preferable to attempt it as soon as possible because:

1. time limits apply to applying to court for a property order:
   1. For married couples who have divorced, the application must be made within 12 months after a divorce order;
   1. For de facto couples who have had at least one child together or have lived together for at least two years, the application must be made within 24 months after separating;
2. Settling property issues tends to remove a significant element of stress from any other matters such as parenting arrangements or a divorce application; and
3. Usually, the sooner the process begins, the better the picture of the parties’ financial situation.

What is mediation?

A mediation is an informal process. Usually, the parties meet with a mediator who is an independent person trained in conducting mediations. The mediator’s role is to help the parties agree: they have no interest in one party achieving a particular result.

At different stages of the mediation, the parties may meet with the mediator together or separately. The parties may agree that their lawyers and other support people (such as family members) attend the mediation.

Usually, anything discussed at a family law mediation is confidential and can’t be used in court (in the event that there’s no agreement at mediation). This aims to encourage the parties to explore their settlement options.

Is there a difference between family mediation and family dispute resolution?

Mediation and family dispute resolution (FDR) are broad terms. Family mediation is a form of family dispute resolution. Both can assist parties to sort out arrangements for parenting, property, and maintenance issues.

Facilitators are known as mediators for mediations and FDR practitioners for FDR. While mediators may work in many different legal areas, FDR practitioners are specially accredited in family law. They often have experience in dealing with issues such as parenting and property division.

Whether you choose FDR or mediation, there is usually a fee which is often divided equally between you and your former partner.

What can I do to prepare for mediation?

Any property discussions can be stressful, particularly in the wake of a relationship breakdown. Things that you can do to help the process include:

1. Create a master list of all your property (including any personal items), including who holds each item and whether you’d like to have or retain it;
2. Get market appraisals from licensed real estate agents for any real estate and record the values on the list;
3. Estimate the value of any other assets (e.g. jewellery, cars, investments) and agree on their worth if possible. Record these values on your list;
4. Work out a budget for your future financial needs and living expenses;
5. Try to work out what each of you contributed to the property pool when you first started living together;
6. Try to reach agreement for as much property as possible: the less there is for a court to sort out, the better.

Is the agreement enforceable?

On its own, an agreement reached at mediation isn’t enforceable. It does, however, serve as evidence of what you’ve agreed. If one party breaches the agreement, your only option may be to sue for breach of contract under general law.

However, you can have your solicitors draft consent orders or a Financial Agreement (FA).

We recommend applying to court to make consent orders based on the mediation agreement. If the other party breaches the agreement, you can apply to court for enforcement.

What if we can’t agree how to divide the property?

If you and your former partner can’t agree on the division of property, the mediator or FDR practitioner may recommend another attempt at mediation or further counselling.

If there’s no chance of agreement, you may need to apply to court for property division orders. The court will ultimately give you a final hearing date. During that hearing the court will consider evidence about your living situation, your financial situation, and any other relevant factors. Evidence can include documents, expert reports or witness evidence.

The court’s decision will be legally binding on you and your former partner, regardless of how you feel about it.

The court process is expensive and stressful and can take many months or years to finalise. That’s why the system encourages people to resolve things for themselves.

Any other issues to consider?

Your property settlement may affect any Centrelink payments, so you should advise Centrelink as soon as possible to avoid incurring any debt. You should also consider making a new will.

Here to Help

Contact us for help to achieve the best possible outcome from your property settlement negotiations.