Property Settlement Time Limits & Extensions of TIme

What is the Time Limit for Property Settlement

There are time limits within which you must do your family law property settlement.

Is there any minimum time limit you have to wait before doing your Property Settlement?

You can do your family law property settlement as quickly or as soon as you want after separation.

There is no minimum time period you have to wait to do a property settlement, although emotionally, parties usually need a little time to have elapsed since separation before they can properly consider property division.

If it is very early after your separation, you might want to read through our article on the Stages of Separation to help understand when your partner will be ready to discuss practicalities like property settlement.

Maximum Time Limit to do Property Settlement

A maximum time limit does apply.

There must be an Application to the Court for property settlement filed in the appropriate Court within:

 

 

• 1 year of a Divorce becoming “absolute” for married couples. A divorce becomes “absolute” when the Court issues a Certificate of Divorce – usually 1 month and 1 day after the Divorce hearing; or

• 2 years of separation for de facto couples.

For confirmation of these time limits you can see the de facto time limit in section 44(3) and the marital time limit in section 44(5) of the Family Law Act.

These time limits are the same no matter what State or Territory you are in throughout Australia.

These time limits are the time period within which a Court can:

• Accept an Application for the Court to decide your property settlement; or
• Issue an Order based on an Application for Consent Orders if you reach agreement on your property settlement and wish to document it that way, so that it will be legally binding and enforceable.

If you are negotiating with your former spouse and you haven’t reached agreement about your property settlement, then you need to institute proceedings within that time limit or you may lose your chance to pursue your property settlement if negotations break down.

If you are married, many lawyers recommend not lodging an Application for Divorce until after you have reached agreement on your property settlement, as if you do, you just start the time clock clicking for the 1 year period to finalise your property settlement after divorce.

Extending Time seeking “Leave to Proceed” if Time Limit has expired

If the time limit has expired you can make an Application to the Court for “leave to proceed” notwithstanding the expiration of the time limit.

If “leave to proceed” is granted then the time frame you have to pursue your property settlement has been extended.

An Application to the Court for leave to proceed with a property settlement outside the time limit will only be granted in limited circumstances.

As to when a Court will grant leave to proceed outside the time limit, Section 44 of the Family Law Act says that:

The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

1.                      hardship would be caused to the party or a child if leave were not granted; or
2.                      in the case of an application for an order for the maintenance of the party–the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

Factors Courts look at when deciding whether or not to Grant Leave to Extend the Time Limit

The Applicant bears the onus (duty) of showing evidence & proving to the Court that the justice of the case is such that it requires the Application to be granted. 

It is not for the Respondent to have to prove the Application should not be granted. 

The Judge will consider whether the Applicant has established:

1. A reasonable prima facie case for property settlement to be granted, had the Application been made within the time limit (prima facie means a case likely to be sucessful on a face value look or initial brief look at it);
2. That denial of the claim would cause the Applicant hardship; and
3. An adequate explanation as to the delay.

All 3 elements must be proved, however it may also be that the reasons for hardship, might outweight an inadequate explanation for the delay. 

If proved, then the Court must also look at whether the Respondent would suffer any prejudice if the Application were granted.

The Court will look at:

• the history of the proceedings;
• the conduct of the parties;
• the nature of the litigation & its consequences to the parties if the Application were granted or refused.

The fundamental question in an Application for Leave to Extend Time is whether granting the Application will do justice between the parties.

More Information: Property Settlement

You can read actual cases to see what Courts have decided:

• when people have made an Application outside the time limit for leave to proceed;
• as to how the property pool should be split between each party – who gets what percentage.

To find out what you may be entitled to in your property settlement, or how much you may have to pay to your former spouse, read our article How do I work out how much I will get – how is Property Division decided – The 4 Steps, which also gives a practical example you can work through.

Every asset and financial resource is included in Property Settlement.  That includes Superannuation.  You can about how Superannuation is split between married or de facto couples in a property settlement in the article How do I get some of my partner’s Superannuation / Giving some of your Superannuation to your spouse in Property Settlement.

We have 16 information sheets on different issues in Property Settlement. To see a list of all the information sheets so you can read everything you need to know, access our Property Settlement Section Page.

There is also relevant information in our Separation Section.  Our article Separation Checklist of the Practical & Miscelleanous Issues provides a comprehensive list of things you should make sure you’ve done if you have separated.

 

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