Property settlement time limits: Turnbull Hill Lawyers

Understanding the time limits involved in family law property settlements is crucial for protecting your interests following separation from your spouse or partner. Missing property settlement deadlines can result in significant financial losses and legal complications. Ensuring you know and stick to these time limits can help avoid these issues.

This article will guide you through what a property settlement is, the specific time limits for married and de facto couples, and the implications of missing these deadlines.

What is property settlement?

A family law property settlement is the legal process of dividing assets and liabilities between parties after a relationship breakdown. This process involves identifying and valuing all property, including real estate, savings, investments, and debts, as well as assessing your contributions to the property and looking at your future needs.

This is not necessarily an easy process and you should contact a family law solicitor early in the separation process to ensure that any agreement you reach is fair. The goal is to achieve a just and equitable distribution of your assets.

You can complete a property settlement immediately after you separate, and you should not delay your settlement for too long. If an agreement cannot be reached amicably, the matter may be resolved through mediation or court proceedings.

Property settlement time limits for married couples

For married couples, the time limit to commence property settlement proceedings is within 12 months from the date of the divorce order. This means that once a divorce is finalised, you have one year to negotiate and then if no agreement is reached, apply for a property settlement with the Federal Circuit and Family Court of Australia (FCFCOA).

If you fail to apply to the Court within this period, you may need to seek leave, or permission, from the Court to proceed out of time.

The Court will only grant this permission under exceptional circumstances as discussed below.

Property settlement time limits for de facto couples

For de facto couples, the time limit to commence property settlement proceedings is within two years from the date of separation.

Like married couples, if de facto partners miss this deadline, they might need to seek the Court’s permission to file proceedings out of time.

What happens if I miss the property settlement deadline?

There are two main exceptions to this time limit:

1. Where both of you consent to the property settlement out of time; or
2. Where the Court grants leave, or permission, to proceed.

When determining whether permission should be granted to a party commencing proceedings out of time, the Court considers the following:

1. Whether the party or a child of the relationship would suffer hardship if permission was not granted; and
2. In the case of an application for a maintenance order, the court will consider what the applicant’s circumstances were at the end of the standard application period and whether they would be unable to support themselves without an income tested pension, allowance, or benefit.

The law concerning hardship is complicated and depends on your specific circumstances. The Court will also consider the strength of your claim, the reason for your delay and the prejudice to the other party.

A Real Life Example

In the case of Slocomb & Hedgewood, the Wife applied for property settlement 18 years out of time. The trial judge initially refused to grant permission to proceed out of time. The trial judge found that the wife had established hardship and she had reasonable prospects of success but that the husband would suffer prejudice if leave were granted out of time. The trial judge considered that she had not adequately explained the 18-year delay. 

However, the Full Court allowed the Wife’s appeal and granted her leave to commence property proceedings out of time. They found that there was a reasonable explanation for the Wife’s delay and that the Husband had been just as inactive as the Wife in protecting his rights.

Contact us today

If you need to complete a property settlement, you should remember the following concerning the time limits:

• You can agree to property settlement at any time after separating.
• You have two years following the date of separation for a de facto relationship.
• If you are, or were, married, you have one year following the date of a Divorce Order being made; and
• If you are out of this timeframe, you should seek legal advice.

At Turnbull Hill Lawyers, we have a team of trusted Family Law experts who can provide you with advice and representation concerning property settlement. Please contact us today.