In this series we will discuss the fundamental basics of Family Law, providing information and guidance that may answer questions you have throughout the Family Law process. This week, we discuss time limitations to commencing property settlement proceedings.
While separation is a difficult time for all involved, it is important to note the time limitations that apply for de-facto and marriage breakdowns in order to bring property proceedings before the Family Court.
Under section 4AA of the Family Law Act 1975 a person is in a de-facto relationship with another person if:
a) The persons are not legally married to each other;
b) The persons are not related by family; and
c) Having regard to all the circumstances of their relationship, they have a relationship as a couple who are together on a genuine domestic basis.
There is no time limit on how soon after separation parties can commence property settlement negotiations however; proceedings for property settlement must be commenced within 2 years following separation.
For that reason, the date of separation is very important when a de-facto relationship breaks down.
When a married couple separates, they must be separated for a period of 12 months prior to applying for a divorce. Following the Court granting a final divorce order (decree absolute), the parties must commence property proceedings within 12 months.
Are you out of time?
It is not uncommon for parties to file an Initiating Application with the Court to preserve their ability to pursue a property settlement prior to the expiration of the time limit which is applicable to the relationship they were in.
If you are unable to reach an agreement or you fail to apply to the Court within the prescribed time, you may be precluded from commencing property settlement proceedings. In any event, we recommend that you seek legal advice regarding your options as, in some circumstances you may apply to the Court to seek leave to commence property settlement proceedings “out of time.”
In order to obtain leave from the Court to commence property settlement proceedings “out of time” the Court will need to hear reasons as to why it should grant the leave requested, having regard to:
a) possible hardship to the applicant or a child of the relationship if leave were not granted;
b) whether the applicant has a reasonable claim to adjust property interests; and
c) the length of the delay and reasons for such delay.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.