TIME LIMITS
Property matters (i.e. division of property and spousal maintenance matters) can be finalised by:
An agreement between you and your former partner (by incorporating the terms of the agreement in a consent order or financial agreement); or
If you cannot agree, an application to the court to make financial orders on your behalf.
There is no minimum time period which you have to wait to begin finalising your property matter. However, the matters must be finalised within a specified statutory time limit. This time limit will depend on whether you and your former partner were married or in a de facto relationship.
MARRIED COUPLES
Once you have been separated for 12 clear months, you can apply for divorce.
You will have 12 months from the date of the divorce order becoming absolute to file an application for financial orders relating to property adjustment and/or spousal maintenance.
For example, if your divorce order became absolute on 1 January 2017, you will need to commence proceedings before 2 January 2018. If you do not commence proceedings within the 12 month timeframe, you will need to seek leave to make an application ‘out of time’ (which will be granted only if it would cause hardship to you, your former partner, or any child to the marriage).
The court will only grant leave to apply outside of the time limit if the court is satisfied that:
- Hardship will be caused to a party or a child if leave is not granted
- In the case of maintenance, that when the time limit lapsed, the applicant was unable to support himself/herself without an income tested pension, allowance or benefit.
DE FACTO COUPLES
A de facto couple will need to commence proceedings within 2 years from the breakdown of the de facto relationship.
For example, if separation occurred on a final basis on 1 January 2017 (and you have not since reconciled), you will need to commence proceedings before 2 January 2019.
It can often be difficult to pinpoint the exact date that a de facto relationship broke down. Couples often disagree as to when they separated on a final basis, and this will become a question of fact to be determined by the court. The longer you wait to finalise property settlement, the more difficult it can be to show that you were within the time limit. We recommend that you attempt to finalise property settlement as soon as possible.
If you do not commence proceedings within the 2 year time limits, you will need to seek leave from the court to make an application ‘out of time’. A court will only extend the time limit if it would cause hardship to you, your former partner, or any child to the relationship.
The court will only grant leave under the same grounds as marriage (referred to above).
NO TIME LIMIT
There is no time limit in respect to parenting matters. You have the ability to commence court proceedings at any time so long as there is a child under the age of 18 years of age. Similarly, there is no time limit to set aside a property order, or to vary, revive, suspend or discharge a maintenance order.
CONTACT US
If you have any questions in regards to time limits, please do not hesitate to contact our Gold Coast or Sydney family law department.
