Commencing proceedings out of time

Help! I’m running out of time!

In family law matters, time limits apply for parties seeking to commence property settlement and/or spousal maintenance proceedings, regardless of whether you were married or in a de facto relationship. These time limits are commonly referred to as ‘Limitations Periods’.


How long do you have to commence proceedings?

If you and your spouse were married, section 44(3) of the Family Law Act 1975 (Cth) (“the Act”) provides that ordinarily, a party to a marriage can apply for orders for property settlement or maintenance only if an application is filed within 12 months after the date of divorce.

If you were in a de facto relationship, section 44(5) of the Act allows a period of 2 years following the end of a de facto relationship to file.


Can I still commence proceedings outside the limitation period?

If a party fails to file commence property proceedings before the expiration of their limitation period, the party will be “out of time” and the application will not be permitted to proceed unless the court grants leave.  The onus of proof falls on the applying party to prove leave should be given to institute proceedings outside of time, if consent from the other party is not obtained.

In accordance with section 44(4) of the Act, in determining if leave is to be granted to an applicant to commence proceedings out of time, the court firstly must be satisfied that the applicant, or a child of the relationship, will suffer hardship if leave is not permitted.

Case law tells us that the court must secondly consider whether it should exercise its discretion to grant leave, meaning it is ultimately left up to the court to decide if an application may proceed.


What constitutes hardship?

With reference to the case of Jacenko[1], the court must be satisfied that the applicant has established the following three principal matters in assessing hardship:

  1. The applying party has a prima facie case worth pursuing or a “real” chance of success, if the proceedings were commenced in time;
  2. The denial of the claim would cause hardship to the applicant; and
  3. There is an adequate explanation that for the delay in instituting proceedings.

The court will further consider whether the costs to be incurred in pursuing the claim will outweigh the benefits the applying party may receive.

Thereafter, the prejudice the respondent may suffer by reason of the delay will be looked at by the court.

The Full Court of the Family Court in Whitford[2] said:

Hardship may be caused to an applicant if leave were not granted to institute proceedings, although the applicant is not in necessitous circumstances. Whatever the financial situation of an applicant may be, his or her loss of a prospective entitlement to property including money, or his or her inability to have the financial and property relations of the parties adjusted or resolved, may constitute hardship.”[3]


The Court’s Discretion

If hardship is established, the Court is then required to determine whether, in the exercise of its discretion, it should grant or refuse leave to institute proceedings.

To assist in this decision, the court must consider all relevant factors including but not limited to:

  1. The length of the delay beyond the prescribed expiry date;
  2. The reasons for the delay and if the explanation as to the delay is adequate;
  3. The strength and merits of the applicant’s case and that on the evidence available, the applicant has established a prima facie case;
  4. The prejudice to the respondent resulting from the delay; and
  5. The degree of hardship which would be suffered by the applicant unless leave were granted.


A Prima Facie Case

If a party’s case is doomed from the start, they will be unable to establish “hardship”. The court will not grant leave to a party to proceed out of time if their matter has no actual probability of success. To decide this, it is not a forensic assessment of the merits of each party’s case as the court would undertake at trial; the court evaluates if there is a case to be heard at all.


The applying party needs to consider the costs that may be incurred in proceeding with its application for property settlement to establish “hardship”. If an applicant’s costs to pursue litigation of their claim will likely outweigh the benefits they are likely to receive from property settlement, the court will not grant leave.


When applying for leave, applicants will have to demonstrate they have an adequate reason for their delay in instituting proceedings on time. Applicants must particularise what attempts they have made to resolve financial matters to satisfy the court of this principle.

The requirement to explain a party’s delay is to be read in conjunction with the decisions in Althaus[4] and Howard[5] which indicate that in appropriate cases, the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay.


The 12 or 24-month deadlines imposed by the Family Law Act are in place for legal, financial and practical reasons, and understandably so. They protect parties and provide them with peace of mind knowing their former spouse cannot commence proceedings against them outside the statutory timeframes. They also encourage parties who are considering making an application to make a decision as to whether or not they will pursue their claim.

In summary, it is essential to understand the time limitation period that applies to your circumstances.

To avoid the stressful, costly, lengthy and often unpredictable process of applying for leave to issue financial proceedings out of time, property settlement claims should be applied for in a prompt and timely manner, well within the statutory imposed deadlines.


[1] In the Marriage of Jacenko (1986) FLC 91-776

[2] Whitford and Whitford (1979) FLC 90-612

[3] Whitford and Whitford (1979) FLC 90-612, p 78,145

[4] Althaus and Althaus (1982) FLC 91-233; (1979) 8 Fam LR 169

[5] Howard and Howard (1982) FLC 91-234(1979) 8 Fam LR 178

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