Tick, tock: Time limits and post-divorce/post-separation applications for property settlement and maintenance
Time Limits and Divorce
23-11-2020

Most people are unaware of time limits on making an application to the Court for maintenance or property settlement.

If you have not resolved financial matters with your former spouse or de-facto partner, then failure to issue proceedings within those time limits can cost you dearly.

The Family Law Act provides that unless a party obtains leave from the Court, that party cannot institute proceedings for spousal maintenance or property settlement after 12 months from the divorce.

Likewise, a de-facto spouse cannot institute maintenance or property proceedings after two years from the date of separation unless the leave of the Court is granted.

There is an exception in the case of maintenance cases where the applicant is dependent on an income tested pension, allowance or benefit on those dates.

Whether the Court grants leave is entirely up to the Court.

There may be a number of circumstances where leave would be readily granted. This may be where hardship would otherwise be caused to the applicant.

This is a legal term however and the Family Court has, in a number of cases, indicated that simply missing out on the time limit is not of itself hardship.

The Court has also pointed out that hardship in one case may not be hardship in another. Much will depend on the size of the asset pool and the circumstances of the applicant.

There have been many cases where leave has been refused. This can cause a great deal of frustration and also financial loss to the party concerned.

These time limits should not be taken for granted.

It is natural for parties to want to deal with these issues at a later time. They may have children’s matters to sort out. They may be going through a grieving process or they simply want the dust to settle for a while.

However, ignoring these time limits can lead to further loss.

In all cases, getting advice from a family law specialist early on is important. Negotiations should commence well before the time limits expire. Early advice can also help preserve assets and ensure that you are in the best position tactically when negotiations or litigation commences.

Given our experience and expertise we at Freeman Family Law can provide the best advice possible.

Are you concerned that time is running out on an application for maintenance or property settlement? Get in touch with Freeman Family Law today.

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