By Glenn Thompson and Jacqueline Dawson -
Snapshot
- Most real property settlements in Australia are carried out electronically. In family law, an issue often arises where one party is, or becomes, self-represented after settlement documents are finalised and the individual is then unable to participate directly in the property settlement using the electronic platform.
- To avoid situations where a settlement cannot proceed, or where the remaining lawyer is placed in the position of acting for both parties, the authors have drafted an order that could be used to compel a self-represented party to engage a practitioner to carry out the electronic settlement.
- Solicitors should apply their professional judgment as to the suitability of the order in each particular matter.
We know that most real property settlements in Australia are now carried out electronically – currently via PEXA, although other platforms are looking to join the market. In the family law arena, a particular issue arises in property proceedings where a party is self-represented, or where they become self-represented after settlement documents are finalised.
It is not possible, under the conveyancing legislation in each state or territory jurisdiction, for an individual to participate directly in a property settlement using an electronic platform. As a result, if the unrepresented party refuses to retain representation, this can leave the lawyer who remains in the matter with a difficult dilemma. Do they offer to act for the (now) self-represented party in the settlement? For most of us, that option would be extremely uncomfortable, even if our client agreed to the arrangement. Aside from issues of conflict of interest, questions may arise as to whether the client’s consent to the arrangement was freely given. And in some matters, acting for both parties may increase the risk of friction between them and jeopardise the final resolution of their matter.
