Is there a time limit for settling a property dispute in family law proceedings?

Publications > Is there a time limit for settling a property dispute in family law proceedings?

 

January 2012

If you and your former spouse or partner are able to reach an agreement about your property settlement, this can and should be formalised as soon as you separate.    A time limit only applies when parties need to apply to the Family Court or Federal Magistrates Court for a judge to make orders regarding their property settlement.

 

 

For marriages: a 12 month time limit applies from the date of the divorce order being finalised.

 

For de-facto relationships: a 2 year time limit applies from the date that the parties separate.

 

There is nothing stopping parties from bringing an application to court before a divorce order is final or the 2 year time limit is close to expiring ie: proceedings may be brought during the period of separation.
If the parties are outside the time limits, the court will not hear their application.

 

There are exceptions to this general rule:

• The application may be brought where both parties to the marriage consent.
• Where other family law related proceedings (such as a parenting matter) are already before the court, then a party to the proceeding is able to institute property proceedings without leave.
• Where the parties seek leave (permission) of the court to bring their application for property proceedings. 

 

The court must not grant leave unless the court is satisfied that hardship would be caused to a party to the marriage or a child if leave were not granted.

 

What is hardship?
Hardship can be hardship to a party to the marriage or a child of the marriage.  The reasoning being that the child will suffer hardship if the custodian of the child is not allowed to bring their property claim.

 

The loss of the right to institute proceedings is not considered hardship.  A party seeking leave will not need to prove necessity, poverty or need.  Hardship can be shown regardless of the party’s affluence or financial status.

 

How will the court address hardship?
The following factors will be considered by a court in determining whether there will be hardship:

• whether denying the right to claim would cause hardship to a party or a child of the marriage;
• whether a case which is reasonable is shown;
• whether there is an adequate explanation for delay; and
• consideration will be given to the question of prejudice to the party opposing the application.

 

This means that if you can show hardship, the court will give you permission to file your application for property settlement orders outside the time limit.

 

Next step?
You should consult with a family lawyer regarding your property settlement application.

 

Contact
For assistance and confidential advice about your family law situation, please contact Brisbane Family lawyer and accredited specialist, Tuskeen Jacobs at t.jacobs@rostroncarlyle.com or 07 3009 8444

 

Helena Redmond
Trainee Solicitor, Family Law