The Family Law Act 1975 (Cth) (“the Act”) imposes time limits on parties for bringing property settlement proceedings. These are usually called “limitation dates” or “time limits” and determining the time limit is most often the first essential piece of information that a lawyer will advise about when taking instructions for a property matter.

Section 44(3) of the Act imposes a time limit of twelvemonths from the date that a divorce order becomes effective for bringing proceedings. In layman’s terms, a party must bring proceedings within twelvemonths of their divorce order becoming effective (which is not the same as the hearing date – it is one month and one day from the date of the divorce order being made).

In the case of de facto couples, there is a time limit of twenty-four months from the date that the parties separated as outlined in Section 44(5) of the Act. For de facto couples, it is crucial that the party bringing the proceedings is able to accurately recall of the date or approximate time of separation so that their lawyer can determine whether the time limit has expired, or is close to expiring, and take appropriate steps to preserve their clients’ interests.

In some cases where the time limit has expired, the court may still offer relief to the parties, however this is only in cases where either the parties both consent to the application being brought out of time, or the court grants leave for the application to be brought out of time.

If the parties’ consent to an application for property settlement being brought out of time, then the application procedure is fairly straightforward. Problems arise however when only one party wishes to seek leave of the court to bring the application, as the court must consider multiple factors, primarily:

      Whether there would be hardship on the applying party or a child if leave was not granted; and

       Whether the party applying would be unable to support themselves without an income tested pension, allowance or benefit in the case of spousal maintenance        applications.

If the applying party is able to establish hardship, then the court must take further considerations into account, for example, the length of the delay, the reason for the delay, the strength of the merits of the applicants case and the prejudice to the respondent  resulting from the delay.

Applying for leave out of time is not a simple exercise and careful consideration should be given to whether the application is necessary and whether there is merit to the application in consideration of the above factors. Better yet, a party should take care to attempt to settle their matter outside of court and well prior to the limitation period expiry to avoid the unnecessary costs and time that an application to the court requires.  If an applicant is unsuccessful in satisfying the court that their application should be brought out of time, cost consequences may follow.

For more information about costs consequences and their application to your case, please feel free to send us a message, or book in with one of our solicitors. Remember – your first 15 minute consult is free!

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