There are strict time limits that apply when making an application to the Court in relation to family law property matters. Section 44 of the Family Law Act 1975 (Cth) (“the Act”) specifies that a married person must make an application in relation to property matters within 12 months of a Divorce Order taking effect. For de facto couples, a person must make an application within 24 months of the breakdown of the de facto relationship. If an application is not made within these time periods, then the Court must provide leave (or special permission) for an application to be made out of time; and leave is not always granted.
Section 44(6) of the Act stipulates that the Court may grant an extension of time if the applicant demonstrates that they will experience hardship if they are not given the chance to bring proceedings for substantive relief. If hardship is demonstrated, numerous factors can influence whether the Court allows an application to be made out of time, including the length of the delay, the adequacy of reasons for the delay, and the prejudice the respondent would suffer if the application for extension of time was granted. This means the application to extend time is not guaranteed and might not be granted. The onus rests with the applicant to demonstrate why an extension of time should be granted. It is not up to the respondent to demonstrate why the application should be refused.
The recent case of Welland & Hawthorn [2021] FCCA 1232 highlights the importance of making an Application in relation to property matters within the required time period. In this case, the parties were in a de facto relationship for around 16 years, commencing a relationship in 2000 and separating in February 2016. They had 2 children together.
After the parties separated in 2016, the Wife engaged several lawyers throughout 2017, 2018 and 2019 and obtained advice in relation to property matters. On her own evidence, she was advised by her lawyers on several occasions that she needed to make an application within the required time period, and she was also advised that she was running out of time to make an application. Notwithstanding this advice, the wife failed to make an application regarding property matters until November 2019, almost 2 years late.
On appeal, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction dismissed the Wife’s application for property orders out of time, on the basis that, while the Court was satisfied that the applicant would suffer hardship, she did not provide an adequate explanation as to the reason for her delay. The Court considered that she had willingly engaged lawyers, attempted mediation and engaged in negotiations with the Respondent, and as such there was no satisfactory reason for why she didn’t commence proceedings in the required time frame.
If you have recently experienced a relationship breakdown, we recommend that you contact our office as soon as possible to obtain advice about resolving property matters, within the required time period. Delay or procrastination in these circumstances could result in you not being entitled to a property settlement, that you would otherwise be entitled to, if made in the appropriate time period.
Author: Ellen Russell