Time Limits for a property settlement - Am I out of Time?

Breakups can be emotional, overwhelming and stressful, often far from your mind is the idea that there is a deadline for a property settlement.

The Family Law Act sets limitation periods in bringing an application to the Court for a property settlement for both married and de facto couples. It is important to be aware of these time limits, otherwise you could run out of time to make a claim through the court.

Time limits for married couples

For married couples, the time limit for filling an application for a property settlement is one year after a divorce order takes effect. Whilst this time may appear to be short, keep in mind that because you must be separated for a period of 12 months before being eligible to apply for a divorce order. Therefore you effectively have at least 2 years before time runs out and the clock doesn’t start ticking until you are divorced.

Therefore, it is essential to make sure you have your property settlement effectively legally sorted when you are divorced. However, I would advise you to seek legal advice regarding property matters at least as soon as you separate, you can then make informed decision as to when is the best time to pursue a property settlement and make sure the assets are protected in the meantime

Time limits for de facto couples

Alternatively, those in a de facto relationship have a time limit of two years after separation (there is no divorce for de facto couples).

Although the date can be clear cut in some relationships, often it is not. For example, if you separated but continued to live under the one roof or had periods of reconciliation, there is scope for disagreement over when the date of separation actually occurred. (In 10 Things to Know about Divorce I explain further what separation looks like). Again, seeking legal advice early on in the process is preferable, especially if there is some doubt about when the clock starts ticking.

Oops, I missed the deadlines

Ran out of time? Don’t panic just yet.

Under section 44(6) of the Family Law Act, the Court has the power to grant parties leave to file an application to the Court for a property settlement out of time.

To allow this, the Court must be satisfied that hardship would be caused to the party or a child of the relationship if leave is not granted. Hardship is not defined within the Family Law Act, and so the Court considers what constitutes hardship on a case by case basis.

In bringing an application out of time you therefore need to give a reason for your delay in brining proceedings and further demonstrate how hardship is caused or else leave may not be granted. Also keep in mind that the mere loss of the opportunity to bring proceedings is not in of itself hardship and so this reason alone may not be sufficient enough to be granted leave.

These set time limits demonstrate once again why it is so important to seek timely legal advice and discuss your circumstances with a family lawyer. Here at OFRM, there are 5 family lawyers, including 2 family law specialists, available to meet with you to discuss your circumstances and best way forward from here. Call 03 5445 1000 to speak to someone.