Before progressing with your family law matter, it is important to know how long you can pursue your case in Court. You must understand the time limits imposed by the Family Law Act, how they are relevant to different applications, and how you may be affected.
Different time limits apply depending on if you are a party to a marriage or if you are party to a de facto relationship. Extensions may be granted in restricted circumstances with the discretion of the Court. However, it is not common. Please be aware of the constraints that apply to your matter and aim to have all matters finalised well and truly before their expiration.
Divorce
To be eligible to make a divorce application, you must be able to show the Court that your marriage has irretrievably broken down with no prospect of reconciliation and that you have been separated for a minimum period of 12 months. This 12-month period commences on the date of final separation and once 12 months have passed since this date, you can apply for a divorce.
But what happens in the event you and your ex-partner resumed cohabitation after being separated for an extended period? Well, under section 50 of the Family Law Act, you and your ex-partner can resume cohabitation but only for a short period that is no longer than 3 months.
If you resume cohabitation for longer than 3 months, the minimum time limit for a separation period of 12 months must be reset from the date of your second separation. To give an example, if you separated for 2 months, then resume cohabitation as a couple for 2 months, and then decide to separate again, the second period of separation can be 10 months to meet the 12-month minimum time limit.
Property Settlement
A married couple has one year after their divorce has been granted to commence property settlement proceedings. You will have exactly one (1) year from the date your divorce order becomes final, that is one (1) day and one (1) month from the date of your divorce hearing. By way of example, if your divorce order becomes final on 30 June 2022, then your last day to file an application will be 30 June 2021.
The same applies to de facto couples, except they have two (2) years after their separation to bring a property settlement application. By way of example, if your separation ends on a final basis on 1 July 2022, then your last day to file an application will be 1 July 2024.
These time limits also apply for spousal maintenance claims made by married or de facto couples.
Despite these constraints, due to the changing value of family law, property and assets, it is recommended that parties to a divorce or separation engage in property settlements as soon as possible.
Leave
To be granted leave of the Court to apply for a property settlement outside the time limit, the Court must be satisfied that you, the other party, or a child of the relationship or marriage, will suffer hardship if you are not permitted to make a claim.
Hardship is not explicitly defined in the Family Law Act, and so it is up to the Court’s discretion to decide if a hardship exists and grant leave accordingly. In addition, you will be required to demonstrate why you failed to make the application within the prescribed time limit.
In exercising its power to grant leave, the court will consider
· The reason/s for the delay;
· If the length of the delay was reasonable in the circumstances;
· The strength of the merits of the Applicant’s case; and
· The disadvantage of the delay had on the other party.
Appeals
If a party wishes to appeal a decision made by the Court, they have 28 days from the date of the Order to file a Notice to Appeal, a copy of the Order, and the filing fee. The party appealing the decision must also serve the appeal on the other party, who has 14 days to file a Response to an Application for Appeal.
When deciding whether to grant an extension for an appeal, the Court will observe the same considerations as granting leave to apply for a property settlement outside of these restraints.
In short, the Court will consider the length and reason for the delay, the disadvantage to the other party, and the Applicant’s overall grounds for appeal.
If you need further advice from our expert family law team, please contact us on 1300 749 709 to see how our experienced team can assist you.
