Separation can be stressful, however it is important that you preserve your potential rights and entitlements under the Family Law Act by being aware of the time limitations in Family Law matters.
A commonly held belief is that you can apply for divorce immediately after you separate. This is not the case. You must be separated for a minimum of twelve (12) months before you are eligible to apply for divorce.
Separation means that you need to satisfy the Court that you and your spouse have lived separately and apart for at least that period of time, and there is no reasonable likelihood of you and your spouse resuming married life.
Once the twelve month period has passed, there is no time limitation on you lodging an application for divorce. The application process can be commenced at any time, although you need to bear in mind that the Court process from the lodging of the application until the grant of divorce becoming final can take between 3-6 months. This is especially important if you are planning to remarry.
Property settlement for married couples
The granting of a divorce is directly relevant to the time limit to initiate court proceedings seeking a property settlement in the case of married couples. Once a divorce becomes final, you have twelve (12) months to lodge an application with the Federal Circuit Court seeking a property settlement or your application will be considered to be out of time.
Importantly, the court proceedings to not need to be finalised within the twelve month period, they merely need to be commenced.
It is therefore often wise to delay applying for a divorce if you are still negotiating property settlement matters with your former spouse and court proceedings have not yet been commenced.
Property settlement for de facto couples
A de facto relationship occurs where you are not married to your partner, but have resided together as a couple or “on a genuine domestic basis”, for a minimum of two (2) years.
Upon the breakdown of a de facto relationship, you have two (2) years from the date of separation to initiate proceedings in the Federal Circuit Court seeking a property settlement.
Responding to an application you have received
If your former spouse initiates property settlement proceedings in the Federal Circuit Court you will be served with a document called an Initiating Application. You have twenty-eight (28) days from the date on which you are served with a copy of the Application to file your Response to Initiating Application and supporting documents. The 28-day time limit also applies in relation to application for children’s orders.
It is therefore crucial that you obtain legal advice as soon as possible after you are served with the document. If the Court considers that the matter is urgent, the court date listed on the application may be less than 28 days away. If that is the case, it is even more important that you obtain legal advice in a timely manner.
Extension of time
If you do not comply with the above time limits and still wish to initiate property settlement proceedings, you will need to apply to the court for an extension of time within which to lodge your application.
The granting of an extension of time is not automatic and you should not assume that such an application will be successful. The court will consider whether there will be any hardship to you or a child of your relationship if the extension of time is not granted. They will also look at the length of the delay and the reason for it, as well as whether your former spouse would be unfairly disadvantaged if the application for an extension of time was granted.
Each application will be dependant on the facts and circumstances of that particular case and you should therefore seek legal advice before lodging any application out of time.
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