
In Australian family law, there are strict time limits for initiating property settlement applications under the Family Law Act 1975 (Cth). These time limits, relevant legislation, and considerations for out-of-time applications are detailed below.
Time Limits for Property Settlement
The time limits for applying for property settlements are set out in the Family Law Act 1975 (Cth):
- Married couples:
- Section 44(3): Applications must be filed within 12 months of the divorce becoming final.
- De facto couples:
- Section 44(5): Applications must be filed within 2 years of the end of the de facto relationship.
Out-of-Time Applications
If an application is filed after these time limits, the applicant must seek leave (permission) from the court to proceed. The court has discretion under Section 44(4) (for married couples) and Section 44(6) (for de facto couples) to grant leave for an out-of-time application if it is satisfied of certain factors.
Key Considerations for Out-of-Time Applications
The court must be satisfied of the following:
- Hardship to the applicant or a child:
- The court considers whether refusing the application would cause significant hardship to the applicant or a child of the relationship.
- Hardship is broadly interpreted and may include financial hardship or loss of entitlements.
- Reasonable explanation for the delay:
- The applicant must provide a reasonable and acceptable explanation for why the application was not made within the prescribed time.
- Prospects of success in the substantive property claim:
- The court assesses whether the applicant’s substantive claim for property adjustment has merit and is likely to succeed.
Relevant Precedent Cases
Successful Out-of-Time Applications
- Whitford v Whitford (1979) FLC 90-612:
- The court granted leave, emphasizing that significant financial hardship to the applicant was a critical factor in allowing an out-of-time application.
- It highlighted the importance of ensuring fairness in property distribution despite procedural delays.
- Sharp v Sharp [2011] FamCAFC 150:
- The court allowed an out-of-time application where the applicant provided a reasonable explanation for the delay, including health issues and financial hardship.
- Simpson v Brockmann [2010] FamCA 937:
- Leave was granted when the court found that the applicant had a strong substantive case and the failure to allow the application would cause significant financial detriment.
Unsuccessful Out-of-Time Applications
- Valack v Valack (1994) FLC 92-498:
- The court refused to grant leave due to the lack of a satisfactory explanation for the delay and insufficient evidence of hardship.
- In the Marriage of Carey (1980) FLC 90-866:
- The applicant failed to demonstrate that the delay caused significant hardship or that they had a reasonable explanation for not filing within the required time.
- R & M [2004] FMCAfam 404:
- The court declined the application because the substantive property claim was weak, and the delay was not adequately justified.
Summary of Factors Affecting Success
- Strength of substantive claim: A strong property claim increases the likelihood of leave being granted.
- Degree of hardship: Courts are more likely to grant leave if refusing the application would cause undue hardship.
- Reasonable explanation: Justifiable reasons for the delay, such as illness or lack of awareness, are considered favorably.
- Length of delay: Shorter delays are more likely to be excused compared to lengthy, unexplained delays.
Michael Vassili Lawyers have a specialised team of Family Lawyers across 5 offices to assist you. Michael is an accredited specialist with over 35 years of experience in these matters having successfully run out of time property applications both as an applicants and as a respondents Trial Advocate. Michael appears in reported judgements before the Full Bench of the Federal Circuit and Family Court of Australia, successfully granting out of time applications.
Call us on 1300 557 819 any time for a no fee conference to discuss your family law property matter with Michael and our team.