As family lawyers we see a lot of clients shrugging in wonder when we tell them:
If you were married and are now divorced, become familiar with the date of your Divorce Order.
If you were in a defacto relationship and have now separated, become familiar with the date of your official separation (note: disagreements can later occur as to what was the date of separation, so it is wise you record this, particularly if you are going to continue as separated under the one roof – either with the BDM if your relationship was formally registered or via a Centrelink Certificate of separation if applicable).
If negotiations break down between you and your ex (usually the time when a client attends our office!) there may be recourse to commence Court proceedings to obtain a property or spousal maintenance settlement. But only if you do so within your nominated time frame failing which you may require leave of Court.
This limit is 1 year from the date of divorce for parties who were married (section 44(3) of the Family Law Act) and 2 years from date of separation, for parties who were in a defacto relationship (section 44(5) of the Family Law Act).
It is human nature to want to take shortcuts and save coin on legal fees (read: enter into handshakes with your ex or informal agreements as to what should happen by way of division of assets). More often than not however, these agreements provide more trouble and elevated fees than you could foresee. Agreements of this nature can be later challenged by a party and thus place you in no better a position (read: worse!). Time goes by, you settle on the status quo provided by the handshake then 3, 4, 9yrs down the track (or 30 years as we recently encountered!) the ex comes a-knocking.
Close the door firmly and finally by pursuing either Consent Orders or a binding Court Order.
What if you’re out of time? Simply put, you will have a harder time satisfying the Court as to why it should hear you out now! You will also grimace to find out it may be the case that all assets as at the date you finally make application, may be counted for the asset pool up for division!
You may be able to obtain special leave from the Court to issue proceedings nonetheless, but the strict limitations are not to be glossed over. You have to either establish the ‘hardship’ requirement or (if spousal maintenance is sought), additional requirements. The Court also considers submissions as to the reasons for delay and how allowing or not allowing a matter to be heard may impact on either Applicant or Respondent.
Different rules and requirements may apply for those persons who are divorced vs. those who were in a defacto relationship and you should always obtain legal advice to find out what your set of requirements may be.
If you need assistance in getting the process started or finding out where you stand, give us a call or shoot us an email. Your first appointment is free of charge.
Ross Legal Pty Ltd
(03) 9752 2388