If your relationship has ended and you need to resolve property or spousal maintenance issues, it is important to understand that time limits apply.
It is common for people to delay dealing with financial matters after separation. However, waiting too long can affect your legal rights.
What are the time limits?
The time limit depends on whether you were married or in a de facto relationship.
If you were married, you generally have 12 months from the date your divorce becomes final to apply to the Court for a property settlement or spousal maintenance.
If you were in a de facto relationship, you generally have two years from the date of separation to commence proceedings.
These time limits are set out in the Family Law Act 1975 and are important to keep in mind if you have not yet resolved your financial matters.
What if the time limit has passed?
Missing the deadline does not always mean you have lost your rights.
In some cases, the Court may permit you to bring your application after the limitation period has expired. This is known as obtaining leave of the Court.
When deciding whether to grant leave, the Court will generally consider whether refusing permission would cause hardship to you or a child of the relationship. In spousal maintenance matters, the Court may also consider whether you would have been unable to support yourself without relying on an income-tested pension, allowance or benefit when the time limit expired.
If both parties agree, it may also be possible to file an application out of time by consent; however, the Court still has the power to refuse the application in certain circumstances.
Why is the separation date so important?
The date of separation is often one of the most important dates in a family law matter.
It determines whether you are still within the applicable time limit and can affect whether the Court has the power to hear your application.
Sometimes, separating couples disagree about when the relationship actually ended. In those situations, evidence such as bank records, text messages, emails or changes to living arrangements may help establish the correct date.
What should you do?
If you are unsure whether a limitation period applies to your situation, seeking legal advice early is the best way to protect your rights. Even if the deadline has passed, there may still be options available depending on your circumstances.