Dec 7, 2016
Time limitation for property settlements – married and de facto couples
If you have been divorced for over a year or were in a genuine de facto relationship and separated more than 2 years ago and never formalised arrangements for property, you may find yourself in a bit of a pickle.
Time limitations to initiate proceedings in Court for property settlements are provided for in the Family Law Act 1975 under:
Section 44(3) for divorced couples where the expiration period is 12 months after a divorce order has taken effect; and
Section 44(5) for de facto couples where you are able to make an application within 2 years after the end of the de facto relationship.
Don’t be fooled in thinking the longer it has been since your relationship ended the better, it is not the case.
Both parties in a relationship are entitled to commence property proceedings in Court at any time within the limitation period for married and de facto couples.
What happens if I am out of time?
Even if the limitation period has passed, there is still some hope. Firstly, you and your former spouse/partner may be in agreement to a property settlement out of time and may wish to make an application by consent of both parties.
If you and your former spouse or partner are not in consent, to initiate proceedings in Court out of time, you will need to seek leave from the court and satisfy the court that if leave were not granted, you or a child/ren of the relationship would suffer great hardship or a major injustice.
It is imperative that it is shown to the Court that despite the time that has passed since the relationship broke down, if leave were not granted you would suffer hardship.
So how do you avoid an ex-partner commencing settlement proceedings long after you have separated?
The best way to avoid future proceedings is to formalise your property settlement in a legally recognisable or enforceable document.
This can be done by both parties entering into a Binding Financial Agreement or by filing an Application Consent Orders.