Separation can be a very stressful and emotional time, and parties may avoid or prolong finalising a property settlement with their ex-partner (which may or may not include a provision of spouse maintenance) for a variety of reasons.
Whilst there are no time limitations for parties making an application to the Court for parenting orders for children, the Family Law Act 1975 (Cth) sets down strict time limits in relation to claims for a property settlement following either the making of a divorce order or the breakdown of a de-facto relationship.
Applicable time limits
Section 44 of the Family Law Act 1975 (Cth) (Act) sets out the relevant time periods for parties to apply to the Family Court or Federal Circuit Court of Australia for a property settlement.
- For married couples, a claim must be commenced within 12 months of a divorce order being made.
- For de-facto couples, a claim must be commenced within 2 years of the date of final separation.
Leave to make an application out of time
Notwithstanding these time limitations, it is possible to make an application to the Court for leave (formal permission) to be granted an extension of time under the Act, and be permitted to have their property settlement heard and determined by the Court notwithstanding that these time periods have expired.
When considering applications for an extension of time, the Court usually undertakes a two (2) step enquiry.
The first step involves the Court considering whether hardship (substantial detriment) would be caused to the applicant party if leave were not granted.
If the applicant party establishes hardship, the second step involves the Court using its discretion to determine whether or not the claim/s should be heard by the Court.
Factors the Court may consider include:
- the length of the delay in bringing the claim;
- whether there is an adequate explanation for the delay in bringing the claim; and
- the prejudice that may be suffered to the other party if leave is granted.
Expert help available
Applications for leave to commence proceedings out of time are highly technical areas of family law and ultimately depend upon the individual facts and circumstances of each case.
If you find that you are out of time to commence a property settlement claim, it is vital that you obtain legal advice regarding the prospects of success in applying to the Court for leave.
Alternatively, if you have been served with Court documents by your ex-partner (or his/her legal representatives) and you are aware that their claim/s are out of time, it is also vital that you obtain legal advice regarding the merits of your ex-partners claims.
Dorter Family Lawyers and Mediators are experts in family law and can assist you in all areas of family law. If you would like to book an appointment to see one of our experienced family lawyers for a confidential discussion, please call our office on (02) 9929 8840 or email us at firstname.lastname@example.org