Time limits and rules to remember when applying for a property settlement

During marriage or a de facto relationship it is expected that the parties will be accumulating properties aside from those that they already own when still single.

The divorce or separation of a couple will lead to the division of the properties that they have accumulated during the relationship including those owned by the parties before the start of the relationship.

The parties will have to be careful in instituting an action for property settlement because there are time limits that may lapse.

The time limit for bringing an action for property settlement in a marriage is 12 months after the divorce. As for a de facto relationship, an action for property settlement must be brought within two years after the end of the relationship.

The parties, whether from a marriage or de facto relationship, can file an action for property settlement with the Family Court or Federal Circuit Court.

In a marriage, the time limit to remember is 12 months after the divorce. It is easy enough to remember since all that a party needs to do is to wait for the court decision that the marriage is dissolved by divorce.

So, all that a party needs to present as proof of eligibility is the fact of marriage and the divorce. However, it must be remembered that a property settlement order will not be issued by the court unless arrangements for children have been made.

De facto relationship time limits to apply for a property settlement

It is more complicated for a de facto relationship since the yardstick for the time limit cannot be easily determined. For a de facto relationship the time limit is two years from the time of the separation of the parties.

A former de facto partner would have to prove, among other things, that two years have already lapsed from the time the relationship ended. This can be done by submitting affidavits of witnesses who can attest that it has already been two years since the de facto partners separated.

There are other conditions required by the Family Law Act 1975 before an application for a property settlement can be made. One condition is provided under Section 90SB which are the relationship conditions.

Under the said provision of law, the de facto relationship must have existed for an accumulated period of at least 2 years;

  • or there is a child of the relationship; or one of the partners has made a substantial financial or non-financial contributions and it would result to a serious injustice if an order is not made;
  • or the de facto relationship has been registered under State or Territory laws that provide for registration of relationships.

If a serious injustice would result to the party who made a substantial contribution the requirement pertaining to the 2 year existence of the relationship may be waived. The 2 year existence of the relationship is also not required if the de facto partners have a binding financial agreement.

This is because the agreement can be enforced as long as it has been validly executed between the parties and the Court finds the agreement to be fair between both parties.

Despite the time limits set by the law, an application for property settlement may still be filed beyond the 12 months after the divorce or 2 years after the end of the de facto relationship. An application for property settlement beyond the time limits would be left to the discretion of the Court whether to accept the application or not.

Thus, there is a danger of losing one’s rights to the properties of the relationship if the action is not commenced within the time limits.

Under Section 44(6) of the Family Law Act 1985, a de facto partner can apply for a property settlement beyond the time limits if hardship would be caused to the party or a child if leave of court is not granted. The Court will then determine whether there is merit to the late application for property settlement.

Property settlement in court will go through a four step process pursuant to the mandate of the Family Law Act. This will probably take some time since the Court would want to be thorough with the identification of the assets of the relationship, the individual contributions and the needs of the parties in order to come up with a just and equitable property settlement order.

Parties are encouraged to enter into their own property settlement agreement to save time and costs. This agreement can be submitted to the court for consent orders without having to go through a full-blown trial.

This eBook provides an introduction to the legal concepts that govern property settlements and spousal maintenance.

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Author

Alan Weiss

16th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.