I’ve missed the deadline for a property settlement. What can I do?
Married parties have one year from the date their divorce order takes effect to make an application to the Family Court of Australia or Federal Circuit Court of Australia for a property settlement. Couples who have been in a de-facto relationship, have 2 years from the date of their separation to ask the court for a property settlement.
Do not panic. If you have missed the deadline, then you will need to ask the court for leave (essentially permission) to file “out of time”.
Under section 44(6) of the Family Law Act 1975 (Cth) the court can grant parties leave to file an application for property settlement out of time. However, the court must:
1. Be satisfied that hardship would be caused to a party or a child is the leave were not granted, and
2. Be willing to exercise its discretion and grant leave.
The lost opportunity to bring court proceedings is not of itself a hardship. So, what could be considered hardship?
Well, it depends on the specific facts and circumstances of each case. The generally accepted interpretation of “hardship” is “substantial detriment”, which isn’t helpful. It does not involve the proof of necessity, poverty or need.
In Whitford and Whitford (1979) FLC 90-612 the Full Court of the Family Court made it clear that hardship did not mean a party needed to be penniless; the loss of a potential entitlement, including money or the ability to have property matters adjusted or resolved, could constitute hardship.
Unfortunately, tactics to deliberately cause a delay are not uncommon. A mediation or negotiations may be on foot and agreement seem likely, and then just after the deadline one party walks away from negotiations. Or, like in McCarron and Unsworth (1978) FLC 90-444, the wife after being induced by her husband to transfer her interest in their home to him to assist him financially in return for a promise by him to later sell the home and divide the proceeds, never heard from her former husband. She was granted leave to begin property proceedings some seven months late. In Fisher v Fisher (1942) P 101 for many years after the divorce the husband had been supporting the wife and negotiations as to a final settlement had been ongoing. In that case, the wife was given leave to start proceedings 7 years after the deadline.
Aside from proving hardship, important considerations for the court when granting leave include whether:
1. A party has an explanation for the delay.
2. The applicant has a reasonable property case that is likely to see some (even a small) alteration in the property of the parties.
If you have missed your deadline for filing a property application, your deadline is fast approaching or you just want to get the ball rolling well in advance, please contact one of our team members on 03 9070 9839 or firstname.lastname@example.org