Have you recently divorced your former spouse or are you planning to apply for a divorce in the near future? If so, it is very important to note that if you will not have a legally binding family law property settlement within 12 months of your divorce becoming final, you will need to file an application in the family courts before that 12 month period expires in order to keep alive your right to obtain final property orders.
Contact our experienced Family Lawyers Brisbane or North Brisbane family lawyers for initial complimentary advice regarding applying for a divorce or any other family law matter. Otherwise, read on for further information right now…..
Section 44 of the Family Law Act 1975 (FLA) provides that ordinarily, property and spousal maintenance applications shall not be instituted after the expiration of 12 months after the date on which a divorce order becomes final except by leave of the court or the consent of the parties. (refer Edmunds & Edmunds where the wife sought leave to institute property proceedings 6 years out of time)
If you were in a de facto relationship, your application to court seeking final property orders must be made within 2 years of the breakdown of your de facto relationship if you have not by that time obtained a legally binding family law property settlement.
If you wish to obtain final property orders after the period of 12 months from the date your divorce became final or after 2 years from the date of separation in the case of a de facto relationship, you will first need to apply to the court for leave to be permitted to bring your matter to court.
The Court will not grant leave unless it is satisfied:
- that hardship would be caused to a party or a child if leave were not granted
- in the case of spousal maintenance applications, that at the end of the prescribed period, the applicant would have been unable to support themselves without an income tested pension, allowance or benefit.
If hardship is established, the court must then consider those elements relevant to the exercise of its discretion to grant leave, including:
- the length of the delay beyond the prescribed expiry date;
- the reasons for the delay;
- the strength on the merits of the Applicant’s case; and
- the prejudice to the Respondent resulting from the delay.
Contact our experienced family lawyers Brisbane or North Brisbane family lawyers for initial complimentary advice or a fixed rate initial consultation. We have the experience to represent you effectively whether regards a family law property settlement or regards any other family law issue. We will always endeavour for you to reach an amicable family law property settlement with your former partner with our assistance. We have the experience to represent you in court, if court proceedings are necessary.