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Do time limits apply?

An application for property settlement must generally be made:

  • for married couples, within 12 months after their divorce becomes absolute [Family Law Act 1975 (Cth) s 44(3)] or
  • for former de facto couples, within two years of the end of the relationship [Family Law Act 1975 (Cth ) s 44(5)].

Married couples may have more time to make the application if they separate and do not apply for divorce as soon as they are able (i.e. 12 months after separation), see Divorce. Former married couples also have the option of both consenting to the application being made out of time [s 44(3)], whereas former de facto couples do not [s 44(5)].

In special circumstances, the Court may allow a person to apply beyond the relevant time limit; this is called granting leave to apply out of time. The Court must be satisfied that hardship would be caused to the party or a child if leave were not granted [s 44(4) for married couples and s 44 (6) for former de facto couples]. Case law has given consideration to more factors than hardship alone, such as whether:

  • in the first instance the applicant appears to have a case for property settlement (this is called having a prima facie case)
  • the other person will not be unreasonably disadvantaged by the delay
  • the person applying has an adequate explanation for the delay.

In Edmunds & Edmunds [2018] FamCAFC 121, for example, the Full Court of the Family Court reviewed these principles for granting leave to apply out of time in an appeal against the refusal of leave.

No one can be guaranteed that the court will grant this leave. In practice, extensions are not difficult to get, but this should never be relied on.

Do time limits apply?  :  Last Revised: Tue Aug 7th 2018
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