Time Limitations in Family Law

Time Limitations in Family Law

Divorce applications

Divorce and property settlement are two separate matters. Divorce signifies the end of a marriage whereas property settlement is the finalisation of financial matters between the parties. If couples are legally married but their marriage has broken down irretrievably, and they have been separated for 12 months or more, they can then apply for a divorce.

Property settlement time limits

Strict time limits usually apply to property settlement matters.  If parties are unable to resolve their dispute through negotiation or mediation, any court application for property settlement in relation to a marriage must be made within 1 year of a divorce being finalised, or within 2 years of a de facto relationship ending.

What if we are out of time but agree?

If you are out of time (it has been more than 2 years since your de facto relationship has ended or it has been more than 1 year since the divorce finalised or it has been more than 1 year after a Binding Financial Agreement is set aside), but you have reached agreement in relation to property settlement, the Family Law Act provides parties are able to apply to the Court for consent orders.[1]

What if we are out of time and don’t agree?

If you are out of time (it has been more than 2 years since your de facto relationship has ended or it has been more than 1 year since the divorce finalised or it has been more than 1 year after a Binding Financial Agreement is set aside), the Family Law Act provides an applicant can seek leave of the Court to apply out of time if hardship would be caused if leave is not granted.[2] The first step therefore is to identify any grounds of hardship that may be the basis for the leave to be granted.

The Court’s view

There are three principal matters the applicant must first establish in order to seek leave out of time:[3]

1.     A reasonable prima facie case for relief had the proceedings been instituted in time;

2.     Denial of the claim would cause hardship; and

3.     An adequate explanation as to the delay.

Reasonable prima facie case

Based on first impressions, there needs to be a reasonable or arguable possibility for the claim for relief had the proceedings been instituted in time.[4]  It is clearly established the onus is on the applicant to demonstrate why the extension of time should be granted.[5]

Hardship

Hardship has been described as:

-       “serious injustice[6]”

-       “hardness, severity, privation, that which is hard to bear or a substantial detriment”;[7] and

-       “substantial detriment”.[8]

Being denied the opportunity to bring an application in and of itself does not constitute hardship.[9]

Adequate explanation as to delay

In seeking leave of the Court to commence proceedings out of time, the applicant should explain any delay in bringing proceedings[10] noting failure to do so could lead to the application being dismissed.[11]

However, explanation for delay is only one matter for consideration with the Court having determined an inadequate explanation as to the delay may be outweighed by the degree of hardship to be suffered by the applicant if leave is not granted.[12]

The Court’s discretion

If those three elements are satisfied, the Court should then consider other factors including the length of the delay, the adequacy of reasons for the delay and if the respondent would suffer prejudice by reason of the delay in bringing the application.[13] Prejudice includes “a party faced with an action which he or she had no reason to expect or had been led to believe would not be brought.”[14]

Recent Cases

In the 2020 decision of Lin & Yew[15] the Applicant wife was granted leave despite a 32-year delay from the divorce order to the leave application, with the Court finding that hardship would be suffered unless leave was granted.

The recent case of Skelton & Lindop[16] was an appeal against the dismissal of a de facto wife’s application for leave to proceed out of time. The de facto wife brought her application for property settlement at least 7 months out of time however the Court found that the de facto wife “demonstrated she would suffer hardship if deprived of the chance to bring her reasonably arguable substantive property settlement claim against the respondent.”[17]  

If you have separated or divorced recently or otherwise get in touch with Shorestone Legal today so we can assist you with your property settlement.

[1] Family Law Act 1975 (Cth) s44.

[2] Family Law Act 1975 (Cth) s44.

[3] McDonald & McDonald (1977) FLC 90-317.

[4] Sharp [2011] FamCAFC 150, [23]; Gadzen & Simkin [2018] FamCAFC 218, [33]-[37].

[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[6] McDonald & McDonald  [1977] FamCA 93; Perkins & Perkins  [1979] FamCA 4; Carlon & Carlon  [1982] FamCA 60.

[7] Whitford [1979] FamCA 3, [28].

[8] Hall & Hall [1979] FamCA 50; Mackenzie & Mackenzie (1978) 4 Fam LR 374. 

[9] Lundon [2021] FedCFamC1F 330, 16. 

[10] Lundon [2021] FedCFamC1F 330, 15.

[11] Welland & Hawthorn [2021] FedCFamC1A 43.

[12] Althaus & Althaus (1982) FLC 91-233; Howard & Howard (1982) FLC 91-234.

[13] Jacenko & Jacenko [1986] FamCA 25; Arcand & Boen [2021] FamCAFC 155, 40; Welland & Hawthorn [2021] FedCFamC1A 43, 16.

[14] Frost & Nicholson [1981] FamCA 45, [18]; Leibinger & Leibinger [1985] FamCA 2.

[15] [2020] FamCA 1102.

[16] [2022] FedCFamC1A 47.

[17] Skelton & Lindop [2022] FedCFamC1A 47, [39].