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Divorce and separationFinancial issues and settlement

Leave to commence proceedings out of time denied

By August 9, 2018October 26th, 2021No Comments

Under the Family Law Act 1975, to institute property proceedings more than a year after the date of a divorce order taking effect requires the permission of the courts.  And while practitioners say that in recent times, judges have appeared generally willing to grant leave to commence proceedings out of time in the Family Court or the Federal Circuit Court, a recent case in the Federal Circuit Court demonstrates that obtaining such leave from the court should not be taken as a given.

In that case, the husband sought leave to commence proceedings out of time for property settlement. The wife’s lawyers objected to that and argued that the husband’s application be dismissed. The husband had filed his application more than three years after his Divorce Order was issued, which was effectively two years “out of time”.

To grant leave to commence proceedings out of time, the courts require a good reason. Some reasons which have been accepted by the courts in “out of time” cases include: that there is an ongoing financial relationship, that there are adequate reasons for the delay, that there is an ongoing expectation of receiving support or financial assistance from a spouse, and therefore no real financial “cut off” date, that there are ongoing joint property ownership.

The wife argued that the husband’s application for leave to commence proceedings out of time should be dismissed, and the court agreed with her, on the basis that:

  1. The husband was unable to show he had established a prima facie claim or a real probability of success should leave be allowed;
  2. The husband was unable to show he would suffer hardship if leave was not granted;
  3. The reasons given by the husband for his delay in filing the proceedings were unsatisfactory; and
  4. The wife had moved on with her life and would face prejudice if dragged back into litigation.

This case is a good reminder to bear in mind the time limits that exist under the Family Law Act 1975. These time limits include:

Time Limit 1 – Length of separation

The most straightforward time limit is that you can’t be divorced until you have been separated for 12 months.

Time Limit 2 – Married for less than two years

Although not strictly a time limit, if you’ve been married for less than two years, you can’t proceed with a divorce until you’ve attended counselling and received a certificate for it.

Time Limit 3 – Applying for property adjustments

Applications or negotiations can begin from the moment of separation. There is no need to wait 12 months for a property settlement.

Time Limit 4 – Property settlement/spouse maintenance applications for married couples

The more important time limit is that proceedings for property settlement must be commenced, or orders made, within 12 months of the date your divorce becomes final. If your property arrangements are not dealt with within those 12 months, you will need to apply for the permission (“leave”) of the Court to begin proceedings out of time.

Time Limit 5 – Property settlement/spouse maintenance applications for de facto relationships

The situation with de factos is slightly different – at the end of a de facto relationship there is a two year period in which to begin proceedings for property adjustment. The end of de facto relationships can often be murky, so sending an email confirming a conversation to the effect (particularly if you continue to live under one roof for convenience or financial necessity) can be  helpful.

Generally speaking, you cannot make an application for de facto property adjustment if the relationship is less than two years. However, as with many aspects of the Family Law Act, there are exceptions to that rule. These include if there is a child of the relationship or if the person applying for the order made substantial contributions and failure to make an order or declaration could result in serious injustice to the applicant.

You might like to read about property settlement on the Family Court’s website.

Do you need help with a property settlement or another family law matter? Are you “out of time” to file an application? Please contact Canberra family lawyers Cristina Huesch, Sharla Stevens or Angela Li today at Alliance Legal Services on (02) 6223 2400 to make an appointment for advice specific to your circumstances.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

Source: PR Wire

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