Property Settlement Time Limits – Divorce & Separation

First published September 22, 2020, and updated November 16th 2021

You have just 24 months in a de-facto relationship before the property settlement after time limit ends or 12 months for married couples to arrange property settlement after divorce time limit ends.

If you cannot do so, it is highly recommended that proceedings be commenced in the Federal Circuit and Family Court of Australia.

I’ve Missed the Deadline for Property Settlement After Divorce Time Limit. What Can I Do?

Do not panic. If you have missed the deadline for property settlement after the divorce time limit, then you will need to ask the court for leave (essentially permission) to file “out of time”. This is also the case for de-facto relationships if you have missed the property settlement after the separation time limit.

Under section 44(6) of the Family Law Act 1975 (Cth), the court can grant parties leave to file an application for an out of time property settlement.

However, the court must:

1. Be satisfied that hardship would be caused to a party or a child if 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 in 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 a hardship.

Unfortunately, tactics to deliberately cause a delay are not uncommon. A mediation or negotiations may be on foot, and agreement seems 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 after the property settlement after the divorce time limit.

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 seven years after the property settlement time limits.

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.

What Options Are Available if the Parties Can’t Come to a Property Settlement Agreement?

A legal dispute can arise when one party missed the property settlement time limit. This means that they were unable to file their paperwork before this window closed. This can have an adverse effect and often leads to conflict and stress, which may lead one party down a litigation-filled path with many financial consequences for themselves and other members involved.

An applicant seeking to file an application outside the prescribed statutory period of 12 months for married parties or two years for parties in a de facto relationship is required to demonstrate to the court that the person filing the application will suffer hardship if their request isn’t accepted.

What if We Can’t Agree on a Settlement but Don’t Want to Go to Court?

If you are looking for a way to settle without going through lengthy, complicated proceedings, there’s no better option than settling out of court. By doing so, both parties will benefit financially due to fewer legal fees, and the process will be finalised quickly and with less emotional stress for both parties.

There Are Several Ways to Settle Your Property and Financial Arrangements Out of Court.

Arbitration

Even if you’ve tried everything available to you, there are still options to avoid court. Arbitration is a voluntary alternative dispute resolution process that requires both parties’ agreement before proceeding.

By opting into arbitration, both parties need to understand the decision is binding, and both parties agree to accept whatever decision the Arbitrator makes on their behalf.

Private Negotiation

This should primarily serve as your starting position when trying to settle amicably without having to go through court proceedings. Starting with private negotiations is the perfect opportunity for both parties involved in this matter to come together before seeking legal advice about how best they may proceed moving forward.

Settling out of court can be a difficult process, especially if you are trying to negotiate with your ex-partner. At this point, it is important that both parties come together and discuss what will happen when everything goes through arbitration or mediation instead of choosing litigation.

Legal Representation With a Family Law Specialist

The best way to settle a dispute is through private negotiations, and if this doesn’t work, you should consider using the services of an experienced family law specialist.

Negotiating on your own can be difficult when there are circumstances like domestic violence in play or otherwise feeling intimidated by one another. Under these circumstances, it’s always better for both parties involved to have legal representation from start to finish during these proceedings!

How Can I Start Court Proceedings if The Other Partner Has Refused to Settle Out of Time?

You are still able to commence court proceedings and have your matter determined by the court however you now face an additional hurdle. If you have reached the property settlement after the divorce time limit, then you need to first prove that you or a child in need will be suffering financial hardship without receiving property settlement.

You must include a reason as to why your matter was not brought before the Court within time limitations set by Family Court. You will need to include reasons and evidence for why this occurred so a magistrate can understand how much importance it holds.

Contact Sage Family Lawyers

If you have missed your deadline for property settlement after the divorce time limit, your deadline is fast approaching, or you just want to get the ball rolling well in advance, please contact one of our friendly team members. We will be happy to answer any questions and provide advice regarding property settlement time limits in Victoria.

Our team members are available Monday to Friday 8:45 am to 5:15 pm on (03) 9070 9839 or email: info@sagefamilylawyers.com.au.

Frequently Asked Questions