If you have separated from your spouse or partner, you may be wondering if there is a time limit for settling your property. You should be aware that there are time limits for a property settlement after divorce if you are married, or a property settlement after separation if you are in a de facto relationship.
If you and your ex-partner have separated or divorced, you will almost certainly have to divide any family assets, such as:
– the matrimonial residence
– superannuation
– automobiles
– investment properties
– furniture
What are the time limits for settling property after a divorce or separation?
If you are married, you have one year after your divorce is final to file. You do not have to wait until you are divorced to start working on your property settlement and any maintenance claims.If you are in a de facto relationship, you have two years from the date of separation to file.
After a divorce, the property settlement process can begin at any time. We recommend that you begin property settlement negotiations as soon as possible after you separate so that if you can reach an agreement, your property settlement can be finalized without having to go to Court. If you do not begin the property settlement process soon after you separate, or if you wait until after you are divorced, negotiations may take longer than expected. You may then be required to file a court application in order for property settlement proceedings to begin before the time limit expires.
If you have not finalized your property settlement, you must file court papers before the time limit expires or you will lose your right to seek a property settlement for the rest of your life. If you have not filed proceedings by the time limit, and unless both parties consent to an application being filed out of time, you must seek permission from the Court before making an application for property settlement. This is referred to as obtaining "leave of the Court" to proceed out of time. Leave is typically granted only in exceptional circumstances, and strict criteria must be met.
But what if the deadline has already passed?
There could be a number of reasons why you did not complete or initiate property settlement proceedings before the time limit expired.What are the grounds for obtaining permission to proceed outside of the time limit for property settlement?
In order for the Court to grant you leave to proceed outside of time, you must demonstrate to the Judge that:
- If leave is not granted, you or a child from the relationship will face hardship.
- You stand a good chance of winning your property settlement claim.
- In the case of maintenance claims, your circumstances were such that you would have been unable to support yourself without an income-tested pension, allowance, or benefit at the end of the period before the time limit expired.
Considerations of the Court to allow a late application
When considering to allow a late property application the Federal Magistrate and Family Court considers fairness using the following criteria:
- Outside of the limitation period, the length of the delay;
- Causes of the delay;
- Your case's merits are strong;
- The proceedings' history;
- The parties' behaviour;
- Any potential prejudice and consequences to the other party or third parties if leave are granted now;
- The degree of hardship that is likely to be experienced if leave is not granted;
- Weighing the desire to pursue a remedy outside of time against impeding the parties' ability to move forward with their post-separation lives free of potential litigation.
The overall factor that the Judge will consider is whether granting leave will be in the best interests of the parties. You, the applicant party seeking to proceed out of time, bear the burden of proof.
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