Pre-action procedures in property cases

Who can apply for property settlement or maintenance orders?

You and your ex-partner can apply for property settlement or maintenance orders in the family court if you were married or in a de facto relationship.

If you were not married or in a de facto relationship, you may still be able to apply for property orders if you can show you were in a close personal relationship. This uses a different process under NSW law.

For more information, see Who can make a property or maintenance agreement.

What are the pre-action procedures?

If you and your ex-partner can’t agree about how to divide your assets, you usually need to take some steps to try to settle your dispute before you apply to the court for property settlement orders. These steps are called pre-action procedures. They include:

• trying mediation
• sending your ex-partner a notice of intention, or responding to their notice of intention
• giving your ex-partner a copy of the Before you file – pre-action procedure for financial cases (prescribed brochure) by the Federal Circuit and Family Court of Australia.

What you need to do

You must follow these steps if:

• you are thinking about applying for property orders
• your ex-partner has applied for property orders and given you a copy of the application and supporting documents
• you are going to arbitration instead of court.

You must follow these steps unless an exemption applies.

While you go through these steps, the court expects you to act reasonably and responsibly.

You should think about:

• the best way to work out and resolve the issues you disagree about
• how your letters or emails may affect your ex-partner
• how to avoid long, unnecessary or hostile exchanges
• how to keep legal costs reasonable compared with the value of your property pool
• your duty to share relevant financial information and documents.

You must not:

• use these steps for the wrong reason, such as to harass your ex-partner or delay the case
• raise issues that do not matter to the case when you contact your ex-partner.

You don’t have to follow the pre-action procedures if you and your ex-partner are negotiating a binding financial agreement.

For more information, see Property settlement agreements.

Disclosure

If you and your ex-partner are following the pre-action procedures, you must also share financial information and documents. This is called financial disclosure.

You must share all documents and information that are relevant to the issues in your case.

You must also share all documents and information that show your full financial situation.

This still applies even if you or your ex-partner are bankrupt.

You must start doing this when you begin the pre-action procedures and continue until your case is finalised.

For more information, see Financial disclosure in property cases.

Mediation

If it is safe, you and your ex-partner must:

• agree on a mediation service, and
• make a real effort to resolve your dispute at mediation.

For more information, see Family law mediation.

If you reach an agreement at mediation, you should put it in writing.

For more information, see Property settlement agreements.

Exemptions

You and your ex-partner usually need to follow the pre-action procedures before you apply for property settlement orders. You may not need to follow them if:

• your case is urgent
• there are family violence allegations, or a risk of family violence
• you would be unfairly affected if you had to follow the pre-action procedures
• you and your ex-partner have been involved in property proceedings in the last 12 months
• the case is about child support, including an appeal
• the case involves the court’s bankruptcy powers under section 35 or 35B of the Bankruptcy Act 1966.

Even if you do not have to follow the pre-action procedures because you or your ex-partner are bankrupt, you should still make a real effort to resolve the dispute before applying to the court for property settlement orders. For more information, see Bankruptcy and property settlements.

You are not expected to follow the pre-action procedures if:

• it is not safe to do so, or
• you have already attempted the procedures to resolve your dispute but were unsuccessful.

Notice of intention

A notice of intention is a letter that says you will apply to the court for property settlement orders if you cannot settle your dispute.

Sending a notice

Before you apply for property settlement orders, you must send your ex-partner a written notice of intention if:

• you can’t attend mediation because there is no appropriate mediation service available
• someone fails or refuses to attend mediation, or
• you can’t reach an agreement at mediation.

Your notice of intention must include:

• what issues are still in dispute
• a genuine offer to settle the case
• the orders you will apply for if your case goes to court
• a reasonable time for your ex-partner to reply, which must be at least 14 days.

Responding to a notice

If you get a notice of intention from your ex-partner, you must reply in writing within the time given, which is usually 14 days, and say whether you accept their offer.

If you accept their offer of settlement, you should put your agreement into writing. For more information, see Property settlement agreements.

If you do not accept the offer, you must send a letter that explains:

• why you are refusing their offer
• the issues in dispute
• the orders you will ask for if your case goes to court
• your offer to resolve the issues in dispute (called a counteroffer)
• a reasonable time for your ex-partner to reply, which must be at least 14 days.

Get legal advice if you are not sure how to respond, or whether you should respond, to a notice of intention from your ex-partner.

If you do not follow these steps

You and your ex-partner must follow the pre-action procedures before you apply for property settlement orders, unless an exemption applies.

The court may decide you have not followed the procedures if you do not:

• give any relevant information or documents to your ex-partner
• respond to requests for information or documents
• try mediation
• send your ex-partner a notice of intention before applying for orders
• respond within a reasonable time to your ex-partner’s notice of intention.

If you do not follow the procedures, the court may stay (pause) your case until you do. The court may also order you to pay your ex-partners legal costs.

For more information, see Costs in property and maintenance cases.

Get legal advice if you are not sure whether you have followed the pre-action procedures.

Last updated: May 2026