When a couple decides to separate, there is often a variety of issues and difficulties to endure, but it is important to remember that any claims for property and spousal maintenance must be actioned promptly. While there are no time limits for parties wishing to obtain parenting orders for children, there are limitations in place for financial settlements under the Family Law Act 1975 (Cth) (the Act).
The Courts require strict observance of the limitation periods under the Act, and the clock starts ticking as soon as a married couple makes a divorce order, or a de-facto relationship has come to an end. These time limits will ordinarily prevent a party from starting a claim once the prescribed timeframe has finished.
There are different time limits for married and de-facto relationships.
Married couples
Claims must be filed within 12 months of a divorce order taking effect. A divorce may be applied for once the parties have been separated for at least 12 months. There is no time limit in filing an application for property or spousal maintenance matters until the divorce order becomes absolute.
De-facto couples
Claims must be commenced within 2 years of final separation. The parties will need to establish when they officially separated in order to adhere to the time limit. This is sometimes a contentious issue, particularly if the limitation period is nearing so it is important to obtain advice promptly.
If there are any disputes regarding the date of separation, the Family Court will assess independent evidence and determine a date for the parties.
Leave
The Court may grant leave to applications that are filed after the prescribed time period has elapsed, particularly if there are extenuating circumstances that warrant a late application.
Leave may be granted under the Act if:
- hardship to a party, or a child, is established; or
- a spousal maintenance applicant at the end of the prescribed period was unable to support themselves without an income tested pension, allowance or benefit.
The property settlement does not need to be complete within the limitation period but proceedings need to be filed. Parties should be mindful that seeking leave can be costly and it is in their best interest to attempt to file before the relevant expiration date.
If you have any questions in relation to a family law matter, please contact a member of the Cheney Suthers team.
