One of the ways of resolving a divorce is through the negotiation of a settlement agreement. This involves the clients and their attorneys sitting down and trying to reach agreement on the various issues in dispute.
These disputed issues usually revolve around who gets what, as well as around the primary residence and contact, and maintenance issues relating to children born from the marriage.
During the divorce settlement process, there may be a situation where one person refuses to accept a settlement offer made by the other person. This can be very frustrating for the party who has made the offer, as they’re then forced to continue with litigation even though they’ve tried to resolve the issues.
In this situation, Rule 34 of the Uniform Rules of the High Court can be used to break the gridlock in a divorce settlement agreement.
Essentially, the rule states that where a sum of money is claimed, a party may at any time make a written offer to settle the plaintiff’s claim. This offer can either be unconditional or without prejudice.
An unconditional offer means that one party admits the other partys claim in whole or in part, while an offer without prejudice means one party denies liability but makes an offer of settlement. The offer is made by notice, which is a document prepared along the lines of rule 34.
If the notice is unconditional, it will be filed in court, i.e. the judge hearing the trial will have reference to the document. If the notice is given without prejudice, it will only be made available to the court after judgement has been given in the matter.
A party on receipt of the notice may then elect to accept the offer, which means that litigation is resolved on that basis. Alternatively, they can refuse the offer and choose to continue with the litigation.
If the offer exceeds the amount of any judgement ultimately awarded by the court, the usual practice is to order the party who rejected the offer to pay the other partys costs from the date of the Rule 34 offer until the date of the judgement.
If you’re currently negotiating a divorce settlement agreement and are given a Rule 34 offer, it’s wise to carefully consider whether or not the offer is reasonable. This is important because if you decide to continue with litigation in spite of what’s seen as a decent offer, you may find yourself funding a large portion of your opponent’s legal bills simply because you’ve failed to accept that offer.
For direct answers to your specific personal questions, please contact us directly.
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Author – Jessica Gooding