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Property - time Limits


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Kerry White

In family law property matters, there are different time limits for bringing proceedings under the Family Law Act (FLA) depending on whether you were married or in a de facto relationship.

For married couples the time limit for filing an application for property proceedings is one year after a divorce order takes effect. Because parties must be separated for a period of 12 months prior to applying for a divorce, there will be a minimum period of two years before the limitation date. This provides parties to a marriage a clear timeframe. If you are already divorced and have not yet formalised a property settlement, it is important that you obtain legal advice as soon as possible. It may be necessary to file an Initiating Application with the family law courts to preserve your rights, even if you are negotiating with the other party and hopeful that agreement can be reached.

For parties to a de facto relationship the time limit for filing an application for property proceedings is two years after separation.The date of separation therefore becomes significantly more important when a de facto relationship breaks down.

The date of separation is not always clear. For example, if you have lived under the same roof after separation or had periods of reconciliation there may be some confusion or disagreement as to when separation actually occurred. Therefore, you should obtain legal advice about what constitutes separation under the Family Law Act.

FILING AN APPLICATION OUTSIDE OF THE TIME LIMIT

The FLA allows a court to grant leave to parties to file property proceedings outside of the time limit under s44(6), if the court is satisfied that:

  • hardship would be caused to the party or a child if leave were not granted; or
  • if the application is for spousal maintenance, the party’s circumstances at the end of the standard application period were such that they could not support themselves without an income tested pension, allowance or benefit.

What constitutes “hardship” is not defined in the FLA. However, the courts have determined that it will be considered on a case by case basis.

As a general rule, a party seeking to initiate property proceedings after the time limit will have to provide reasons for the delay and demonstrate the hardship caused to the party or a child of the relationship if leave is not granted. However, a mere loss of a right to institute a property claim under the FLA is not considered hardship in and of itself and may not be sufficient.

It is extremely important that you seek timely legal advice and discuss your situation with a family law solicitor. Solicitors at Armstrong Legal can provide you with advice about separation and commencing property proceedings out of time.



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?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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