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Time Limitations Applying to the Commencement of Property Cases in the Family Court of Australia

04/05/2020

The Family Law Act 1975 imposes time limits on when proceedings for property division and spousal maintenance applications must be filed.  These time limits are known as Limitation Periods.  The Limitation Periods are the same for both the Family Court of Australia and the Federal Circuit Court of Australia.  The failure to commence an Application in Court before the Limitation Period expires can mean that an Application cannot be filed and proceed to finality in the Courts. 

How long do you have to commence proceedings? 

If You Are Married

In the case of married persons the Application for property division must be filed with the Family Court or Federal Circuit Court within 12 months after the date on which the Divorce Order took effect or the date of the making of a Decree of Nullity. 

If You Are in a De Facto Relationship

In the case of person in a de facto relationship the Application must be filed in the Family Court or Federal Circuit Court within 2 years after the end of the de facto relationship.  Obvious arguments may arise in relation to when the de facto relationship ended and that would be a matter for evidence.  12 months after the date of the divorce becoming effective is a precise date.

Commencement of Proceedings Outside the Limitation Period – Leave of the Court is Required 

Proceedings which are not commenced within the applicable Limitation Periods cannot proceed without the leave of the Family Court or Federal Circuit Court.  In other words the Court can grant an extension of time and allow a late filed Application to proceed.  The Court proceedings needs to be commenced by the person seeking the leave to commence out of time that leave should be granted.  The Application for leave to proceed out of time must be heard by the Court before the case can proceed and the Court must grant: Leave to proceed out of time

When will the Court Grant Leave

The Family Law Act 1975 does not permit the Court to grant leave unless it is satisfied that: 

(a)      Hardship would be caused to a party to the relevant marriage (or de facto relationship) or a child if leave were not granted; or 

(b)      In the case of proceedings in relation to the maintenance of a party to a marriage – that, at the end of the period within which proceedings could have been instituted without the leave of the Court, the circumstances of the Applicant was such that the Applicant would have been unable to support herself/himself without an income tested pension, allowance or benefits. 

How does the Court approach the question granting leave to a person who has not filed within the time Limitation Periods?

In deciding a Leave Application the Court:

  • Is not required to undertake a detailed hearing of the whole claim on its merits. 
  • Does not ask whether the claim would be successful overall.
  • Will determine as a threshold issue whether hardship would be caused to the Applicant by denying the right to pursue the claim. 
  • The Respondent to an Application filed late to simply oppose the Application for Leave but there are overarching requirements for financial disclosure.

What constitutes hardship?

The Court may take a generous approach to Leave Applications.  The test for hardship is normally satisfied by showing that the Applicant has a prima facie claim of some consequence and will be significantly worse off if leave is not granted.  It is not necessary to show poverty but hardship will not be established by showing the Applicant would be marginally better off if leave were granted. 

The Application for Leave must also provide an explanation for the delay in commencing the Application and explain why the Application was not made before the expiration of the Limitation Period. 

If you are proposing to commence proceedings for financial/property settlement after the Limitation Period has expired and are unsure how this will impact your case or division of assets, our experienced Family Law Solicitors at Watson & Watson can assist you in this regard.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek the appropriate advice sooner rather than later.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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