Time limits are crucial in family law. The Family Court has strict time limits on its processes and applications in the Family Law Act 1975.
Let’s look at some of the relevant property settlement time limits and what you can do if you miss them.
Making a property settlement
You can arrange a property settlement in a few ways. A binding financial agreement, financial consent order or property order are all legally binding.
Binding financial agreement (BFA)
A BFA has a lot of flexibility around when they can be organised. You can enter one anytime before or during a marriage or de facto relationship. However, creating one after a divorce must be undertaken within one year of a divorce order being granted. De facto couples are permitted two years from their actual date of separation.
Plenty of time, right? Well, BFAs must meet certain criteria before they’re enforceable. You and your former partner must seek independent legal advice and ensure the written agreement covers all necessary finances. This may include spousal maintenance, if applicable. It’s recommended to start as soon as possible.
Court order
A court order can be sought through agreement (consent order) or to settle an impasse between parties (property order). There are a few time limits that need to be observed when organising a settlement through the Court.
Applying for orders
When applying for a court order for your property, the same time limits as a BFA apply. An application must be started:
- For married couples, within one year from the date their divorce order was granted.
- For de facto couples, within two years from the date of separation.
You can’t apply for court orders at any point in a relationship. However, it’s not necessary to wait for a divorce order. Married couples can begin the application process as soon as they have separated.
Response to an application
If one party applies for property orders, their former spouse or de facto partner can respond. When the respondent gets served with an initiating application for a property order, their response to that application must be filed and served within 28 days. The document can be served via ordinary service.
Court order review
Once the Court has granted a property order, one party may be unsatisfied and wish to have the order reviewed. An application to review a decision by the Court must be filed within 28 days of the order being granted.
Missing time limits
If you miss the time limit for organising a property settlement, you could lose your right to seek a settlement for good. However, you do have a recourse. You must ask the Court for permission to apply “out of time”. This means you wish to apply outside the usual time limit. This process is the same for divorced couples and separated de facto couples.
A couple of things must happen before the Court will grant leave:
- The Court must believe that the party or a child will suffer hardship if it weren’t granted.
- There’s a reasonable chance the party will be successful in their settlement claim.
There are no set rules determining what constitutes a hardship. The Court considers the circumstances of each case. Here are some relevant factors.
- How much time has passed since the time limit expired.
- Whether the party has an excuse for missing the deadline.
- The strength of the case being made.
- The party’s conduct.
- Whether granting leave would prejudice or have consequences for the other party or third parties.
- The degree of hardship that would be caused if leave weren’t granted.
- If granting leave, it will do justice to both parties in the settlement.
Conclusion
Property settlements are vital to the divorce process. Meeting the time limits ensures you can protect your financial interests. If you do miss a deadline, seek legal advice immediately. A family law expert specialising in property settlement can assist you in seeking permission to apply after the deadline.
Contact our office today if you need help with a property settlement. We can help you assess all financial and non-financial contributions and protect your entitlements.
If you need help with family law matters, contact us for a free discovery call.
