The time limitation in in de facto relationships is two years from the date of separation, In the cases of marriage, the time limitation is 12 months from the date of divorce being effected by the Courts. This means that the time limit for married couples does not start when they separate, but rather when the couple is legally divorced. Parties are ineligible to apply for divorce until they have been separated on a final basis for at least 12 months.
It is important to negotiate and formalise an agreement as soon as possible and within the time limitations. This can be done by way of Consent Orders, filing an Application with the Federal Circuit and Family Court of Australia (‘The Court)’ or a Financial Agreement.
It is possible to resolve property matters or spousal maintenance applications outside of the time limitation by consent of both parties. However, if no consent is obtained, a party seeking to alter property would need to apply to the Court for property settlement or spousal maintenance. If they are outside of the time limitation set out above, they must seek permission from the Court. This is formally known as seeking ‘leave of the Court to proceed out of time’. The party making the application must demonstrate that: either:
The power of the Court to grant leave to proceed out of time is discretionary. Therefore, in order to protect their financial interests, parties should not assume that it would be granted, and should ensure that property matters and spousal maintenance are dealt with as soon as possible and prior to the expiry of the time limitation applicable.
We recommend that parties obtain legal advice as soon as possible following separation and prior to the expiry of the time limitation.
