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Matrimonial and De Facto Property Division - Time Limitations

Oct 19, 2017

The breakdown of a marriage or de facto relationship raises numerous legal issues for the parties involved. This article focuses on the time limitations for Matrimonial and De Facto Property Division.

Negotiations for matrimonial property division, in circumstances of irretrievable breakdown of a marriage, may take place after separation and prior to divorce or after the divorce becomes absolute (final).*However, from the date a divorce order is made final by the Federal Circuit Court of Australia a 12 month time limit is triggered.

What this does and does not mean in practice:

It does NOT mean that within this 12 month period the divorced parties must settle (finalise by agreement) their matrimonial property matters. Nor does it mean that the divorced parties must have their matrimonial property matters finally determined, with or without consent, by a court (the Federal Circuit Court or the Family Court of Australia). Currently it is the Federal Circuit Court hearing all divorce applications.

It does mean, however, that within this 12 month period one of the parties must at least file an application for property orders (which may include orders sought for spousal maintenance) in the Court Registry. In practice, parties to an application for property orders will often settle their property matters by way of consent orders prior to a final hearing (trial) date being set, or after a trial date has been set. Matrimonial and de facto property applications allow time for such post application consents/settlements because there will be several court events prior to a trial.

If the application is an Application for Consent Orders, as opposed to an Initiating Application, there are no court proceedings because the parties are in full agreement as to the orders sought. See our article Application for Consent (Property) Orders versus Initiating Applications for Property Orders.

In the case of de facto property division, the standard application period is within the period of 2 years after the end of the de facto relationship. It is important therefore that the parties identify their separation date to ensure they adhere to this 2 year time limitation. This date is often disputed in de facto matters because of the absence of a Court order that provides a specific date (which is present in divorce matters). A party to a de facto relationship may also attempt to argue that the other party is out of time by providing a separation date that, if accepted by the Court, would require a grant of leave for the application to proceed.

Leave to file out of time:

If you are unable to settle your matter, and you do not file within the relevant time period, you would need to seek leave (permission) from the Court for filing late. The Court’s power to grant this leave is discretionary, meaning the Court does not have to grant leave. Importantly the Court must not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted.

We recommend that if you are involved in relationship property division, whether matrimonial or de facto, you strictly adhere to the time limitations discussed in this article.

* A divorce order is absolute 1 month after it is first ordered – the first order is known as the decree nisi (initial decree) and the second, the decree absolute. See our full article Applications for Divorce for a full explanation of these terms and the Divorce process.

Contact us

Contact Davoren Associates to discuss your circumstances. Our team of dedicated professionals are happy to assist you through this area of law. We aim to make the process as simple as possible whilst ensuring you have received comprehensive legal advice specific to your individual Family Law needs.

If you would like further information or wish to schedule an initial consultation, please do not hesitate to contact us on (07) 5575 2844. Our Family Lawyers team will be only too happy to assist you with all your needs.