Divorce and Time Limits


If you and your spouse have obtained a Divorce Order ending your marriage, it is important to know that the Divorce Order not only formally ends your marriage but starts a “12 month time limit” running for you and your spouse to resolve financial matters between you.

If you do not finalise or least commence court proceedings about how you and your spouse will divide your matrimonial property or the payment of spousal maintenance within the time limit, you may lose the right to do so. This means that you may not receive what you are entitled to under the Family Law Act 1975 (“The Act”).

Out Of Time Settlements

If 12 months have passed since a Divorce Order has been made ending your marriage and you have not formally resolved how to divide the family’s matrimonial property or commenced court proceedings for a financial settlement, then you or your spouse cannot file a court application asking for an order about how to divide your matrimonial assets unless the Court allows you or your spouse to do so.

If the Court does not allow you or your spouse to file an application outside the time limit then you or your spouse will have lost your respective rights to a “just and equitable” division of property. This may be detrimental to you. For example:

Assume you and your spouse were married for 10 years and during the marriage you were the stay at home parent to look after the children whilst your spouse worked on a full time basis and supported you and the family on an income of $150,000 per year. After your separation you could only find part time work earning about $20,000 per year. Your income is not sufficient to pay your weekly expenses. You are likely to be entitled to receive spousal maintenance payments from your spouse to assist with you with meeting your expenses. If you do not resolve spousal maintenance by agreement or commence court proceedings making a claim, then you may not be able to ask the Court for an order for a payment from your spouse.

You do not want to lose your right to spousal maintenance if you need it.

Can I Apply To The Court For A Property Settlement After The Divorce Time Limit Has Expired?

You can still apply to the Court asking for property settlement even though the time limit has passed however, you must ask for permission from the Court to proceed with your application. There is no guarantee that the Court will allow an application filed outside of time to proceed.

Before a Court allows you proceed with an application for property settlement outside of time then you need to prove to the Court that:

  • You have a substantial case for a property settlement order;
  • You or a child of the marriage will suffer hardship if you were not allowed to proceed with your application for a property settlement;
  • You have adequate explanation for why you did not commence proceedings for a property settlement within the time limit.

If you cannot prove the above matters then the Court will not allow you to proceed with seeking an order about how to divide property between you and your former spouse.

Can I Apply To The Court For Spousal Maintenance After The Time Limit Has Expired?

You can still apply to the Court asking for spousal maintenance event though the time limit has passed however, you must ask for permission from the Court to proceed with your application. There is no guarantee that the Court will allow an application filed outside of time to proceed.

Before a Court allows you proceed with an application for property settlement outside of time then you need to prove to the Court that:

  • At the time the limitation period expired you were unable to support yourself without an income tested pension, allowance or benefit;
  • Your former spouse can contribute towards meeting your weekly expenses.

If you cannot prove the above matters then the Court will not allow you to proceed with seeking a spousal maintenance order against your former spouse.

What You Should Do Before Obtaining A Divorce Order

If you are thinking about making and application for a divorce order and have not resolved property settlement or spousal maintenance matters with your spouse then you should:

  • Obtain advice from a qualified family lawyer to find out your rights in relation to property settlement or spousal maintenance;
  • Take steps to resolve property settlement or spousal maintenance with your spouse;
  • If you are unable to resolve matters obtain advice from a qualified family lawyer to decide if you should commence court proceedings to ensure that your right to property settlement and/or spousal maintenance are protected.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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