It is important to be mindful of time limits when considering commencing proceedings in the Family Court. Different time limits will apply depending on the type of claim or type of relationship the parties are in. Additionally, a party may be prevented from bringing an action if the relevant time limit has expired.
A divorce is simply a court order that states the termination of a marriage. Either one party or both can apply for a divorce; however, the parties must have been separated for at least 12 months. There is no maximum time limit within which an application for divorce needs to be brought.
If you’re not yet separated but divorce is your end goal, make sure that you communicate with your partner and actively end the relationship so that the date of separation is clear and unambiguous. Divorce in itself does not deal with financial division or children’s issues.
If you have been married for two years or less, but still “separated under the same roof”, filing for divorce may be a little more complicated. You should speak to your lawyer before starting your process within the court to ensure you meet the legislative requirements.
Unlike financial applications, there is no time limit that prevents a party from bringing a parenting application before the Court, so long as the child in question is under 18 years of age. Despite the absence of a time limit, it is important to remember that the longer a parenting arrangement is in place, the less likely it is that the Court will change that arrangement unless you can establish that it is in the best interests of the child to do so.
Time limits for commencing proceedings to resolve financial issues and division of assets are different. This depends on whether the parties were married or in a de facto relationship. These vary as follows:
Married couples: Parties may file property proceedings or spousal maintenance applications from the date of separation. This applies regardless of whether or not they are divorced. Once divorced, parties have a further 12 months in which to file such applications, in accordance with the Family Law Act 1975.
De facto couples: Parties may file property proceedings or spousal maintenance applications within 2 years from the date of separation, in accordance with the Family Court Act 1997. The Act provides married couples with a date of divorce that triggers the limitation period. It does not, however, give the same certainty to de facto couples. Identifying the exact day of separation is not always easy and can become a point of contention between parties. It is important not to leave filing of applications to the last minute. You are best to avoid the argument over whether the limitation period has expired.
Out of time
The Family Court retains discretion to hear out-of-time applications and consider a grant of leave. This may be possible in circumstances where there is hardship to a party or child. In such cases, the Court may go on to consider:
- circumstances of the delay beyond the limitation period, and
- the prejudice to the other party resulting from the delay.
Where a party is seeking to make an out of time application for spousal maintenance, they must establish that they would have been unable to support themselves in the absence of an income tested pension, allowance or benefit.
Time limits in Family Law are strict and enforced by the Court. It is possible to make an application for leave to commence proceedings out of time. However, to do so is expensive and success is not a guarantee.
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