There are time limits that apply after separation in relation to seeking a property division from the Court. Parties should be aware of these limits and diarise the relevant dates, to ensure that their rights are best protected and to minimise any future costs associated with attempting to seek a property division after the time limit has passed.
If parties were married, they have 12 months from the date of a Divorce Order coming into effect to file documents in Court seeking a property division. It’s important to note that the 12 month period commences from the date of the Divorce Order coming into effect, which is different to the date of the Divorce Hearing or the date the Divorce Order was granted. A Divorce Order (if granted) will ordinarily come into effect 1 month and 1 day after the Divorce Hearing.
If parties were de-facto and never married each other, then they will have 24 months from the date of final separation to file in Court seeking property division. As time begins to run from the date of separation (as opposed to the date of a Divorce Order coming into effect), it is important to diarise the date of separation and ensure that proceedings are commenced within the time limit. If there is disagreement as to the date of separation, this will ultimately be decided by the Court (if the parties remain in disagreement about the date if the matter proceeds to Court), however it may be safest to adopt the earlier separation date for the purposes of diarising when proceedings should be commenced by.
If parties are approaching the time limit to file proceedings and they have not reached agreement with respect to property division and formalised the agreement (and one or both parties seek a property division), then parties should consider initiating Court proceedings to reserve their right to seek a property division. It is important to seek legal advice if parties are approaching the limitation period and/or seeking to commence proceedings
If the 12 month period (for married couples) or the 24 month period (for de-facto couples) has passed and no Court proceedings have been commenced and one party still seeks a property division from the Court, that party will need to seek “leave” of the Court in order to commence proceedings. The Court is unable to grant leave unless it is satisfied that:
1. Hardship would be caused to the party or a child if leave were not granted; or
2. In the case of an application for spousal maintenance, the applicant party’s circumstances were, at the end of the standard application period (ie. 12 or 24 months), such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
If the time limit has passed and both parties consent to proceedings being commenced, then leave does not need to be sought from the Court.
Alternatively, if parties have missed the window to commence Court proceedings but they have reached an agreement about how to divide their property, they may consider entering into what is referred to as a “Financial Agreement”. This document can detail how the parties’ property is to be divided after separation, and does not need to be filed with or approved by the Court (this is subject to any later challenge to the Financial Agreement that a party may bring, which ultimately may be determined by a Court).
If you require advice with respect to property division and/or commencing proceedings following separation, please contact us.
