Rule 34: Breaking the divorce settlement gridlock

Divorce can turn one-time allies into bitter enemies overnight.

Negotiating a settlement agreement is one of the most effective ways to ensure your divorce doesn’t follow this route. A Rule 34 offer is a very  useful tool at your disposal during this process.

Settlement agreements come with their own complications, especially if you and your former spouse are battling to reach consensus around, for instance, who gets what, contact, residency, and cost issues surrounding your children.

With emotion riding high, it’s not uncommon for one person to reject the settlement offer made by their ex.

In this case, your lawyer may suggest a ‘Rule 34’ offer – named after Rule 34 of the Uniform of the Rules of the High Court.

According to a Rule 34 offer, if you (as the plaintiff) ask for a sum of money (such as a maintenance claim or proprietary settlement), your ex (known is divorce proceedings as the defendant) may, at any time, make a written offer to settle your claim.

If you receive such an offer, it’s a good idea to consider carefully, even if you believe that you deserve more.

That’s because, if the legal representatives think that it’s a fair offer, yet you decide to continue with the litigation process, you’ll be responsible for funding the lion’s share of your ex’s legal bills.

This is because the law states that if the offer is larger than the judgment which is ultimately made by the court, the plaintiff is usually required to pay the defendant’s costs from the date that the Rule 34 offer was made, until the date that the judgement was handed down.

A Rule 34 offer can be unconditional – where the defendant admits the plaintiff’s claim, completely or partially – or without prejudice.

In this case, the defendant denies any liability, but offers a settlement nonetheless. The offer must state whether the defendant intends to pay all of the plaintiff’s costs, or only part thereof.

The offer is made by notice; a short document which is prepared according to the stipulations contained in Rule 34.

If the notice is unconditional, it will be filed in court, which means that the judge hearing the trial will be able to access it. If, on the other hand, it is given without prejudice, it will only be made available to the court after the judgement has been handed down.

If the plaintiff accepts the offer, the settlement process will end immediately – if not, it will continue.

Disputes in divorce can be frustrating and difficult for both parties. You may well find that a Rule 34 offer helps to keep confrontation to a minimum.

For more information visit Gillian’s blog.

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