An application for property settlement must generally be made:
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.
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.
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