Property Settlement – Time Limits

Posted on Jul 27, 2021 by Louise Neilson   |   Categories: Family Law

Did you know that there are time limits for property settlement after you separate or divorce?

One of the first questions you will be asked by your family lawyer is ‘when did you separate’?  This is for good reason.  Time limits do apply to family lawyers proceedings for property settlement.   These time limits differ depending on whether you were married or in a de facto relationship.

For married couples

If you are or were married, applications to settle your property interest must be made within 12 months of the date of your divorce becoming final.

It is not uncommon for some separated couples not to get divorced for a significant period of time after they actually separate.  You could be separated but not actually divorced.  The 12 months period to file your Application for property settlement does not start until your divorce is finalised.

The Family Law team at Baker Love suggests that you commence the property settlement proceedings prior to you making an Application for Divorce.  According to the rules around divorce, you and your spouse must be separated for a period of at least 12 months prior to filing for a divorce.

It is often a good idea to start a conversation with your spouse regarding a property settlement before you get divorced.  This will allow you to be able to commence negotiations or filing an application for property settlement with the Courts.

 

For De-facto Couples

If you were in a de-facto relationship, your application for adjustment of your property interests must be made before the expiration of 2 years from the date of separation.

This is why the question ‘when did you separate?’ (as we mentioned earlier), is important.

When you separate from your partner, it is useful to note your date of separation somewhere safe, such as in your diary or as a note in your phone.

Can I make an application for property settlement out of time?

Don’t worry, there are certain circumstances where you can apply to the Court to commence proceedings outside of these timeframes and have your matter heard out of time

In order for the court to grant permission to hear a property settlement out of time, the court must be satisfied that:

 

  1. A hardship will be caused to the applicant or a child under the relationship if permission is not granted
  2. The Applicant must establish that their claim has merit and a real probability of success.

The Court will also take into consideration other factors such as the length of the delay, whether or not there is a reasonable explanation and whether any prejudice would be caused to your spouse as a result of the delay.

Get Help Early

There is often a lot to consider when you separate.  Seeking advice early on from an experienced family lawyer can ensure that all of your interests and those of your family, now and into the future, are protected.  If you have recently separated or separated some time ago but have not yet carried out a property settlement with your spouse get in touch with our Family Law team on 02 49443322 to discuss all things property.