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Divorce and Time Limits

If you and your spouse have obtained a divorce order ending your marriage, it is important to know that the order not only formally ends your marriage but starts a 12-month time limit running for you and your spouse to resolve your financial matters, such as property settlement and spousal maintenance. If you do not being court proceedings within the time limit, you may lose the right to do so and may not receive what you are entitled to under the Family Law Act 1975.

Out Of Time Settlements

If 12 months have passed since your divorce and you have not formally resolved your financial settlement, then you or your spouse will have to seek leave from the court to apply for financial orders out of time.

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 who looked after the children while your spouse worked full-time 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 help you meet your expenses. If you do not resolve spousal maintenance by agreement or start 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 After the Time Limit?

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, and there is no guarantee the court will agree.

You will 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 start proceedings for a property settlement within the time limit.

Can I Apply For Spousal Maintenance After The Time Limit?

You can still apply to the court asking for spousal maintenance even though the time limit has passed. However, you must ask for permission from the court and there is no guarantee the court will agree.

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.

Before Obtaining A Divorce Order

If you are thinking about making an 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 require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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