If you are considering seeking a property settlement or spousal maintenance under the Family Law Act, unfortunately, you don’t always have the luxury of doing this when you’re ready or when you get around to it. There are important time limitations set out under the Act that you should be aware of and keep in mind.
An application for property settlement or spousal maintenance must be made to the Family Law Courts:
- if the parties were married and are now divorced – within 12 months from the date of the divorce order or the date of the decree of nullity;
- if the parties were married but are not yet divorced – there is no time limit;
- if the parties were in a de facto relationship – within two years of the date of final separation.
People may delay filing an application for a variety of reasons, for example, they may not require spousal maintenance until a later time, they may have entered into an informal agreement, or they may simply be unaware that a time limitation is ticking. Whatever the case, not filing within these relevant timeframes may adversely impact your circumstances so keeping an eye on the limitation dates is critical.
Can I still make an application if the time limitation period has lapsed?
If the time limitation period for filing an application for property settlement or spousal maintenance has passed, there are two circumstances in which an application may still be made “out of time”:
- Leave granted by the courts
The first occasion for applying out of time is where the courts have provided leave (or permission) for the parties to apply. In order for the courts to grant leave, a party must satisfy preconditions for leave to be granted, which is not always guaranteed and may be costly. There are two grounds for leave to be granted by the courts under the Act:
- whether there would be hardship to a party or a child;
- whether a party can show that after the time limitation has lapsed, they are still unable to support themselves without a pension, allowance or benefit.
If a party applying out of time can establish hardship, the courts will then consider whether to exercise their discretion to grant leave by considering the length of delay, reasons for delay, the merits of the case and whether the other party is prejudiced by an application out of time.
- Consent by the parties
The second way parties may institute proceedings outside the limitation date is by both parties consenting to making an application out of time. This applies to both married parties and parties who were in a de facto relationship. It is important to note that the courts may dismiss any proceedings by consent if they are satisfied that consent was obtained by fraud, duress or unconscionable conduct, therefore amounting to a miscarriage of justice.
We highly recommend that you make an application within the relevant time limitation period as the courts ultimately have discretion to allow property and spousal maintenance applications to be made out of time and the process of seeking the leave of the court can be time consuming and costly. Should you wish to make an application for property settlement or spousal maintenance, or require clarification as to when the time limitation period will lapse in your situation, please contact our experienced Toowoomba family lawyers team who will be happy to assist.