In the case of Estes & Holmes [2022] FedCFamC1F 267, the court summarily dismissed an application by the wife for an adjustment of property interests.
The parties had separated 1985 after a 14 year marriage. The parties were involved in family law proceedings in 1988 and in 1989 a hearing occurred without the husband being present. Orders were made adjourning the property settlement proceedings until such time as the husband received his superannuation entitlements, which were the only property of any value at the time of those proceedings. At the time, it was anticipated that the husband may receive his superannuation entitlements in or about 2006.
The Wife sought to commence proceedings in 2020 seeking orders for an adjustment of property interests. At that time, the parties had been divorced for 31 years.
The Wife’s application was summarily dismissed, as a result of:
The delay in bringing the application. The Wife could have sought to have the 1989 proceedings relisted at an earlier time;
The Wife did not offer an explanation for the delay in bringing a fresh application for property settlement (or explaining her reasons for not having sought to relist the 1989 proceedings);
The Husband’s superannuation in 1989 was approximately $150,000 but he was now in receipt of the age pension and had minimal property in his name;
The Wife was not able to demonstrate that the Husband had been served with the Orders made in 1989 adjourning the proceedings, noting that he was not present at Court on that date, and was not legally represented.
Although the Court has the ability to grant leave to parties who have applied for a property settlement “out of time”, there is no guarantee that any such application would be successful. In any event, bringing an application out of time results in increased legal costs whilst the Court determines the threshold issue of whether a party should be granted leave to bring such an application. In the case of Skelton & Lindop [2022] FedCFamC1A 47, the de facto wife applied to the Court when the parties had been separated for 2 years and 9 months (9 months “out of time”).
At first instance, the primary judge dismissed the de facto wife’s application. On appeal however, the first instance decision was set aside, and the Court granted leave for the de facto Wife’s application to proceed out of time. Notably, it had taken over three years for the Wife’s application to be determined, by which time the parties had been separated for 5 years and incurred considerable legal costs, and the outcome of the property settlement itself had not yet been determined.
What does this mean for you?
The above cases demonstrate the risks associated with delay in formalising property settlements.
It is important to know that there are time limits which impact your ability to seek an adjustment of property interests after separation or divorce.
If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement by entering into Consent Orders, or to bring an application to the Federal Circuit and Family Court of Australia, seeking orders for an adjustment of property interests.
If you are married (or divorced), you have 12 months from the date that a divorce order comes into effect to formalise your property settlement by entering into Consent Orders, or to bring an application to the Federal Circuit and Family Court of Australia, seeking orders for an adjustment of property interests.
If you are a party to dormant family law proceedings which have been adjourned pending the retirement of one party, or until such time as a superannuation split can be effected, you should seek urgent advice in relation to your circumstances.
It is prudent to obtain advice tailored to your circumstances from a family lawyer, ideally as soon as possible after separation, in order to preserve your interests. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Margot McCabe