Family Law disputes are subject to several time limits that may impact on your matter. Of particular importance is the time limit for the initiation of Court proceedings for property settlement and spouse maintenance.
Time Limits for Married Couples
The limitation period for commencing property and spouse maintenance proceedings for parties to a marriage is 12 months from the date on which the Divorce Order takes effect.
There is no limitation period if the parties were divorced overseas.
Time Limits For De Facto Couples
The limitation period for commencing property and de facto spouse maintenance proceedings for parties to a de facto relationship is 24 months from the date on which the de facto relationship ended.
Out of Time Applications
Should a party seek to make an application outside of these time periods, the Court has a discretion to grant leave to apply out of time. When considering Applications for leave to proceed out of time, the Court must be satisfied that, firstly, hardship would be caused to a party to the relationship or a child. Additionally, in maintenance proceedings the applicant must demonstrate that they would not be able to support themselves without a pension, allowance or benefit.
The concept of ‘hardship’ is complex, and it is explored in depth in a paper written by our Director, Tijana Petkovic, titled “How late is too late” (linked below). This paper delves into the intricacies of hardship in the context of out of time applications, offering valuable insights about the Court’s discretion to grant leave.
Challenges and Considerations
When filing Applications for leave to apply out of time, the applicant will have to explain the reasons for the delay and meet the necessary threshold of ‘hardship’ to enliven the Court’s discretion. These proceedings can be lengthy, costly, and difficult to succeed in. Therefore, seeking legal advice as early as possible is highly advisable to understand your entitlements and the time limits that may apply to your specific situation.
It is critical that you correctly diarise your key dates and time limits to avoid missing the limitation period, otherwise you will not be able to proceed with a claim without leave of the Court.
Blanchfield Nicholls Director Tijana Petkovic presented a paper at The Family Law Litigation Tool Box: Strategy and Procedure Conference on 11 July 2023 on the topic of ‘How Late is too Late? Managing Limitation Periods and Applications to Proceed out of Time’ Find her paper here for more information.
For a confidential discussion about your family law matter, please get in touch.