One of the first questions a family law lawyer may ask you is 'when did you separate?'. There is a good reason for this question. Time limits apply to family law proceedings for property settlement. When you separate from your partner, it is useful to note this date of separation somewhere safe, such as the notes section of your mobile phone.
If you were married, applications for adjustment of your property interests (that is, your property settlement) must be made within 12 months of the date of your divorce becoming final.
Notably, you could be separated for a lengthy period but not actually divorced. The 12-month period to file your application for property settlement would not apply here. The clock does not start ticking until your divorce is final.
We suggest initiating the adjustment of your property interests before initiating your divorce. You and your spouse must be separated for a period of 12 months prior to filing for a divorce. There is no need to wait for your divorce to be filed before starting your negotiations with your spouse or filing an application for property division with the Courts.
If you were in a de-facto relationship, your application for adjustment of your property interests must be made before the expiration of 2 years from the date of separation. This is why the question ‘when did you separate?’ (as we mentioned earlier), is important. You can read more about what the courts may consider when determining if you were in a de facto relationship, in our blog “Defining the meaning of ‘de facto’ and why it’s important in family law”.
If you are outside the timeframe, do not panic. There are some circumstances where an application can be made to the Court to have your matter heard out of time.
However, these applications are not always granted. For an application to be successful, you must prove to the Court that hardship would be caused to you if you are prevented from making your property settlement application outside of the time limit.
Further, if you and your spouse agree to lodge Consent Orders out of time, you can both jointly apply to the Court for your property matter to be heard out of time. Again, this is subject to the Court's discretion.
There is often a lot to consider when negotiating your property settlement. Seeking advice from an experienced family lawyer can ensure all your interests, now and in the future, are protected.
If you require any clarification about property settlement, including issues with time limits or have any other questions about your family law matter, please do not hesitate to contact Bridget of our office who is happy to assist you.
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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact E&A Lawyers.
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