Questions often arise as to how long after separation a person has to apply to the Family Courts to obtain property Orders.
In the case of marriage, a person is able to commence proceedings before the Family Courts seeking property Orders for up to 12 months after the date of divorce.
It is important to know when the date of divorce is. The date of the divorce is 30 days after the date the divorce order was made by the courts.
The divorce date will always clear and readily obtainable.
In the case of de facto couples, a person is able to make an application to the courts for property settlement for 24 months after the separation date.
In the case of de facto couples, the separation date is not always clear.
It is often helpful to have some evidence such as a text message or letter, at the time of separation, confirming the separation date.
It is important that you seek legal advice as soon as possible after separation to ensure that you are not out of time to commence proceedings before the Family Court.
Both de facto and married couples can commence proceedings out of time by agreement.
If parties agree to commencing proceedings out of time, but there remains disagreement about who is entitled to what proportion of the property pool available for distribution, then, the proceedings can commence out of time (by agreement) with the balance of the issues to be determined by the Court.
If however, there is no such agreement, a person is able to apply to the courts and seek permission to commence proceedings out of time.
In order to be successful in getting the court’s permission to commence proceedings out of time, a party will need to demonstrate the following:
- That hardship would be caused to a party to the marriage/relationship or a child if leave were not granted to the applicant; and
- The applicant can show that they have a real probability of success in their property settlement claim.
In considering whether the Court will grant its permission for the proceedings to commence out of time, the Court will also consider the following:
- The length of the delay;
- The reasons for the delay;
- Prejudice caused to the respondent by reason of the delay;
- The strength on the merits of the applicant’s case; and
- The degree of the hardship which would be suffered unless leave were granted.
In the matter of Slocomb & Hedgewood1 the Full Court of the Family Court allowed Ms Slocomb to commence proceedings for property settlement nearly 18 years out of time.
The Court found that although Ms Slocomb provided only some explanation for the delay, Mr Hedgewood had been equally inactive in protecting his rights.
Although the parties were significantly out of time, and the property pool was relatively small, the Court concluded that permission should be given to pursue property proceedings in the interests of justice.
The above demonstrates that not one of the considerations alone set out above, such as the length of delay, will be determinative of whether the court will grant permission to commence property proceedings out of time.
If you have recently separated or already exceeded the time limits set out above, you should obtain urgent legal advice in respect of your rights in obtaining a property settlement.
1  FamCAFC 219