Are There Any Time Limits in Property Settlements?
In Australian Family Law matters, there are relevant time limits that you ought to be aware of when commencing an Initiating Application in family law property settlement cases.
Section 44(3) of the Family Law Act 1975 (Cth) (FLA) imposes a time limit of 12 months from the date of a divorce order becoming absolute for bringing property settlement proceedings.
In relation to de facto relationships, s 44(5) imposes a time limit of 2 years following the end of a de facto relationship.
The rationale for time limits supports the principles of finality, providing parties and their family with a sense closure.
Working with an expert in Family Law property settlements will help to ensure you are receiving what is rightfully yours.
Is Formalising a Property Settlement Necessary if We Have Reached an Agreement?
When you have a verbal agreement to divide property, there is no legal impact. Even a written agreement signed by both you and your former partner and witnessed by a Justice of the Peace, is not legally enforceable.
As much as you would like to believe your ex-spouse will honour your agreement, there is nothing in place to legally protect you if they choose to lay claim to additional assets at a later date.
By legally formalising a property settlement, your financial ties to your former spouse are severed.
Time Limits for Property Settlements for Married Partners
The time limit for ex-spouses to seek property settlements is 12 months after the divorce date.
Time Limits for Property Settlements for De Facto Relationships
Couples separating from a de facto relationship must seek property settlements within 24 months of separation.
What is the Last Day I Can Commence Property Settlement Proceedings?
Married couples need to file their Application for property settlement within one year after their divorce becomes final.
De Facto couples have two years after separation to file their Application for property settlement.
It is strongly suggested that you seek legal counsel and negotiate your settlement with your former partner before filing your Application for divorce. Your negotiating time is limited after you file for divorce, where you intend to seek the assistance of the Court to finalise your property matters.
Is There a Minimum Time Limit You Must Wait Before Formalising Your Property Settlement?
While the time to commence settlement proceedings is limited, there is no minimum waiting period before formalising your property settlement. The process can begin as soon as you want after separation.
However, you may want to take time to adjust to the emotional changes of your separation before commencing proceedings. Additionally, seeking legal advice from an experienced family lawyer will ensure you receive all of your entitlements.
What if the Time Limitation to Formalise Your Property Settlement Has Lapsed?
The time limits may be extended if they would cause hardship to the party or a child (s 44(4) or (6)), with leave of the Court.
The time limit can also be extended by consent for previously married couples (s 44(3)), or for de facto couples (s 44(5)(b)).
Before the Court will grant leave, you must satisfy several criteria.
The Court considers a situation of hardship if it meets one or more of the following,
- The party attempting to begin property proceedings after the time limit has expired must demonstrate a solid initial case. Also called prima facie, this is a claim that likely would have succeeded if the proceedings had been filed within the required time frame.
- The expected costs of pursuing the settlement are unlikely to overshadow the potential benefits the party would receive.
- Once one or both of the first stipulations are met, the Court receives a reasonable explanation for the delay in initiating legal proceedings.
As with other Family Court matters, adhering to the time limits regarding the property settlement process is vital. We strongly recommend not attempting to reach a property settlement alone. The situation can be highly emotional, so having a legal professional with you to help you navigate the settlement makes a significant difference in the outcome.
If you need assistance or information regarding property settlement or other legal matters, feel free to reach out to My Legal Crunch. Our knowledgeable staff is committed to helping you get the best possible outcome for your situation.
