There aren’t many instances in family law where one law applies for married couples and a different law applies to de facto couples. However, one instance where this situation occurs, is in the ability to seek property settlement Orders by consent when you’re out of time. Find out the information you need to know about getting a Brisbane property settlement order.
It is extremely important that parties finalise their financial relationship properly and formalise their settlement either by way of Court Orders or by way of a Binding Financial Agreement. These forms of agreement are available to both those who were married and those who were in a de facto relationship.
But what if you didn’t do anything about your property settlement at the time and you let it go for a while…is it too late to seek a property settlement now?
In this article, we explain the options available to both married and de facto couples to obtain property settlement Orders, once the relevant time limits expire.
We’ve highlighted where the law differs between married couples and de facto couples to make sure you don’t miss the information crucial to your situation, so keep an eye out for the information that is relevant to you.
First, however, we need to take a step back and address what time limitations apply to seeking the Court’s assistance with your property settlement.
Time limits for applying to the Court for a Brisbane property settlement
You may not have realised that there are time limits in relation to commencing an application for property settlement.
Once these time limits end or lapse, you no longer have the right to apply to the Court for a property settlement with your former partner, unless you can demonstrate to the court why you should be allowed to bring the action out of time.
In family law, the limitation periods that apply to parties wanting to finalise their financial relationship with the Court’s assistance are as follows:-
- Marriage: Once your Divorce Order becomes final, you have 12 months to initiate a property settlement in Court; and
- De facto: After you end a de facto relationship, you have 2 years to initiate your property settlement in Court.
This means that you can apply to the Court for property Orders at any time after the day that you separate, up to and including the day that your limitation period expires.
It is extremely important that you aren’t even so much as a few minutes late, once midnight strikes on the day that your time limit expires, you don’t want to find yourself looking like Cinderella after the ball.
For those who were married: Although parties who were married only have 12 months to initiate proceedings to finalise their financial relationship with the Court’s assistance, this period takes into account the fact that you must be separated for a minimum period of 12 months before you are able to apply for a divorce. There is also no maximum period of separation for those who were married.
So that means if neither party applies for a Divorce, the time limit won’t expire. That clock only starts ticking once the Divorce Order becomes final.
Making an application to the Court out of time
For both married and de facto parties:
The legislation specifically permits parties, whether married or de facto, to seek permission from the Court to commence a Court action even though a limitation period has expired. This is called “seeking leave” of the Court.
If you are seeking leave from the Court to file property proceedings outside the limitation period, you must demonstrate to the Court that hardship would be caused to a party to the marriage, or a child of the marriage, if leave is not granted. This can be more complicated than it sounds and you should always seek advice from a solicitor experienced in family law before deciding whether or not to commence a Court action out of time.
Can you and your former partner seek Property Settlement Orders by agreement if you are out of time?
Ideally, property settlement is finalised by consent, or by reaching agreement, with your former partner. This is usually much quicker and less costly (both emotionally and financially) than filing a Court action for property settlement, where there is no agreement between you.
For those who were married: If you were married but your former spouse agrees to seek property settlement Orders by consent out of time, you can still apply to the Court jointly using an Application for Consent Orders form.
For de facto relationships: The big difference
However, if you were in a de facto relationship, even if you and your former partner both want to agree to seek property settlement Orders out of time, you cannot apply to the Court jointly using an Application for Consent Orders.
You must make an Application to the Court seeking special leave to apply for property settlement Orders and have the matter heard by a Judge.
The Court website provides some helpful direction as to how de facto couples should progress in the event that they require the Court’s assistance (out of time) to finalise their property matters:-
“If your de facto relationship broke down more than two years before the date of filing this application, an Application for Consent Orders is not the appropriate form. You should file an Application in a Case + Affidavit seeking the Court’s permission to bring an application for property settlement/maintenance.”
We can also assist you and provide you with advice in relation to making an application for property settlement out of time.
Key points to remember
So far as limitation periods go, the key points to remember are that:-
- If you were married, you have 12 months from the date your divorce order is finalised to file an application in the Family Court or Federal Circuit Court; and
- If you were in a de facto relationship, you have 2 years from the date of separation to file an application in the Family Court or Federal Circuit Court.
- Where the law differs between those who were married and those who were de facto, is if both parties agree to seek property settlement Orders from the Court after their time limitation has expired. Parties to a de facto relationship cannot apply using an Application for Consent Orders once their time limit expires, and must apply for special leave of the leave of the Court to obtain those Orders.
The key is to not wait too long to get advice.
Want to learn more?
It’s never too soon to know where you stand and receive some guidance as to how to legally finalise your relationship with your former partner.
Contact our Brisbane Property Settlement team today to set up an initial consultation for some preliminary advice.
You may also find our “Things to consider on or prior to separation” video useful.