You Need to Know these Five Relevant Time Limits
Separation and divorce are stressful and life changing. There are so many things to consider – your day-to-day needs, arrangements for your children, how you will move forward and so on. It's important to know that throughout this time there are steps you need to take to protect your rights under the Family Law Act.
I've written this to set out, in general terms, when it is that time limits apply, so you're not caught by surprise, and subsequently disadvantaged by missing one.
Time Limit 1 – Length of separation
The most straight forward (and perhaps well known) time limit is that you can't be divorced until you have been separated for 12 months.
Time Limit 2 – Married for less than two years
Although not strictly a time limit, if you've been married for less than two years you can't proceed with a divorce until you've attended counselling and received a certificate for it. In those circumstances, I will often advise that you wait until you have been married for two years before making an application.
Time Limit 3 – Applying for property adjustments
Many people labour under the common misconception that you can't apply for a property adjustment until you're divorced - in fact, applications or negotiations can begin from the moment of separation.
Time Limit 4 – Property settlement
The more important time limit is that proceedings for property settlement must be commenced, or orders made, within 12 months of the date of divorce. If your property arrangements are not dealt with within those 12 months, you will need to apply for the permission of the Court to begin proceedings out of time.
In my experience, if the reason is good enough, a Court will often grant that leave, but that should certainly never be relied upon and property settlement really needs to be started well before that 12 month period ends.
Time Limit 5 – De facto relationships
The situation with de factos is slightly different – at the end of a de facto relationship there is a two year period in which to begin proceedings for property adjustment. You cannot make an application for de facto property adjustment if the relationship is less than two years.
However, as with many aspects of the Family Law Act, there are exceptions to that rule. These include if there is a child of the relationship or if the person applying for the order made substantial contributions and failure to make an order or declaration could result in serious injustice to the applicant.
The time limits above also apply to parties bringing an application for spouse maintenance, which is a concept that has been dealt with in a previous blog.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
