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Time’s Up – But Can I Still Commence Property Proceedings?

Did you know that there is a time limit as to when you can commence property proceedings against your ex-partner or ex-spouse?

If you were married, property proceedings in the Federal Circuit and Family Court of Australia must be made within 12 months of your divorce becoming final. Note that if you are married and your divorce has not yet been finalised, you can still commence property proceedings.

If you were in a de-facto relationship, property proceedings must be commenced within two years from the breakdown of your de-facto relationship.

You can also commence property proceedings outside of the deadline if both parties consent to the application.

But what if I have just missed the deadline?

You would need to first seek leave from the Federal Circuit and Family Court of Australia to exercise its jurisdiction to grant leave to commence these proceedings. Our Family Law team are specialised in these “out of time” applications.

The Law

For those that were married, according to section 44 (4) of the Family Law Act, the court will not grant leave unless it is satisfied that

  1. Hardship will be caused to a party to the relevant marriage or a child if leave were not granted; or
  2. In the case of proceedings in relation to the maintenance of a party to a marriage – that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.

If you were in a de-facto relationship, section 44(6) of the Family Law Act, states that the court may grant leave to apply after the end of the standard application period if the court is satisfied that:

  1. Hardship will be caused to a 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.

Case Study:

Our team has recently been successful in an ‘out of time’ application that proceeded to the appellant jurisdiction of the Federal Circuit and Family Court of Australia. Our client was in a de-facto relationship where she made financial and non-financial contributed towards it. The parties disputed when their relationship ended, and this was crucial in determining how late our client’s application was. The trial judge concurred with our client’s assertion as to when the relationship ended, therefore concluding that her property application was commenced 8 months late. In the first instance, the trial judge refused our client’s leave to commence proceedings out of time. The trial judge incorrectly concluded that there was no finding to support that “there would be an injustice to the wife is she was not granted the indulgence to commence proceedings out of time”. The trial judge further incorrectly ordered that our client’s financial and non-financial contributions were too minimal to enable her to be entitled to a settlement figure.

“The court accepts that on the appellants own evidence, her contributions, both financial and non-financially, would be regarded as so minimal that it would be, therefore, difficult, on the balance of probabilities to establish any hardship”.

The trial judge further claimed that there is “a paucity of evidence as to whether the wife is able herself without an income tested pension, allowance or benefit”.

Our expert team lodged an appeal against the trial judge’s decision on several grounds of error of law and facts. It was established that our client was only required to establish a prima facie case that she would establish hardship should the application for leave not be granted, and she did not need to establish anything “on the balance of probabilities”. The trial judge therefore demanded more from our client than what she was required to prove.

Our client was therefore successful in her appeal, and she is now able to commence property proceedings against the respondent.

Speak to one of our specialised family law solicitors today to further advise you on your application to seek leave to commence property proceedings.

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