What issues can be discussed at mediation?

Mediation can assist separated couples work out how to divide assets and debts and re-organise their finances. It can also assist couples who are entering into a marriage or de-facto relationship and want to record how they would like their assets divided, if they decide to separate in the future.

The issues that can be discussed include:

• Division of property and finances

• Payment of mortgages and other debts

• Financial support for children

• Spousal maintenance

• How to resolve family issues that are already in the court system

What are the Steps in Property Mediation?

Who attends the mediation?

The people attending can include:

• Separated couples wanting to discuss how their property and finances will be dealt with

• Couples entering a relationship who are seeking to have a binding financial agreement (eg. pre-nuptial agreement)

• Family members who are in conflict about financial issues

Do I need to attend mediation before I can go to court?

Attendance at mediation is generally required before property and financial cases can be taken to family courts unless there are exceptional circumstances, such as extreme urgency or overwhelming power imbalances caused by issues of family violence. When a person files a court application, they also need to file a Genuine Steps Certificate setting out what attempts they have made to resolve their dispute. Attendance at mediation complies with this “genuine steps” requirement.

Advantages of Mediation

• Mediation provides a far quicker, less expensive alternative to court

• It allows parties to retain control and make their own decisions rather than handing control over to a judge

• Parties can tailor the agreement to their needs and work out a fair and cost-effective way to divide their assets and ensure that debts are paid in a timely manner

• Discussions take place in a private, confidential and supportive environment

What information will I need to provide?

You will need to gather information about your income, property, superannuation entitlements and debts and provide this to the other party and the mediator prior to the mediation session.

Duty of Disclosure

Parties have a duty to provide full information, called “full and frank disclosure”, about their income, assets and debts. A failure to make full and frank disclosure can have serious consequences. These consequences may include:

• any agreement set out in Consent Orders being set aside

• the court adjusting a property settlement in favour of the party who has provided full disclosure

• having to pay the other party’s legal costs

• being fined, or

• being charged with contempt of court (which can result in imprisonment).

What happens if agreement is reached?

When parties have lawyers, generally the legal representatives will draft the agreement. It can be drafted into a document called Consent Orders or a Binding Financial Agreement. Where there are Consent Orders, an application to the court will need to be made to have the orders approved. Where parties don’t have lawyers, the mediator can assist by drafting Heads of Agreement setting out the key areas of agreement.

Time limits

If you don’t reach agreement, the following general time limits apply to file an application in the court system for property adjustment or maintenance:

• If you were married, an application must be made within 12 months of your divorce becoming final.

• If you were in a de facto relationship, an application must generally be made within two years of the breakdown of your de facto relationship.

If you want to start proceedings out of time, you must ask the court for leave. This is not always granted.

Time limits do not apply to child support.

NOTE: If you are married and your divorce is not yet final, you can apply for property and financial orders if you don’t reach agreement at mediation.

Helpful Resources

Before You File: Pre-Action Procedure for Financial Cases

Marriage, Families and Separation Brochure

Duty of Disclosure