Time Limits in Finalising a Family Law Property Settlement08-08-2023 | Resource | Simone Thomas
The main aim of a family law property settlement is to formally divide the assets and liabilities between separating parties at the end of a relationship. While reaching a fair and equitable settlement is vital for moving forward after a relationship breakdown, there are time limits associated with finalising settlements that need to be taken into consideration.
Under our current legal system, time limits are imposed to try and ensure a timely resolution to settlements and to avoid undue delays. Firstly, they encourage parties to resolve their disputes promptly, thus minimizing the emotional toll and enabling a smoother transition into their post-separation lives. Secondly, they protect parties from lingering financial ties, ensuring a clean break from each other's financial affairs and providing an element of certainty that an ex-spouse will not be able to seek more money at a later point in time.
What are the Time Limits for Initiating Proceedings?
For married couples, an application for a property settlement must be filed with the Federal Circuit and Family Court within 12 months of their divorce becoming final. For de facto relationships, the time limit is 2 years from the date of separation. If a party fails to initiate proceedings within these timeframes and wants the Court to determine a settlement, they may need to seek special permission from the court to proceed, which can be a challenging and costly process.
In certain circumstances, the court may grant an extension of the time limits if a party can demonstrate "hardship" or "special circumstances." However, such extensions are not automatic and require a compelling case. Hardship may arise from exceptional circumstances that prevented a party from initiating proceedings on time, such as serious illness or incapacitation. Special circumstances could also include instances where one party deliberately concealed assets or engaged in fraudulent behavior to delay the proceedings.
Staying within the Time Limits
For the majority of couples the best way to determine a property settlement is for each party to seek the advice of an experienced family lawyer and then to negotiate between themselves until a fair and equitable solution is reached.
For married couples, it may be in your best interest to finalise a property settlement and any parenting arrangements BEFORE filing a divorce application. Given that the time limit is 12 months from the divorce becoming final, this gives you time after the separation to look at things objectively and more time for negotiations. Contrary to what some people believe, you only need to be separated on a final basis to finalise a property settlememt and you do not need to wait for your divorce.
If you are still negotiating with your former partner and the time limit is approaching, you will need to commence court proceedings within the approved time period. This will effectively ensure that you can continue negotiating with your former partner, as the Court will make Orders at any time during the proceedings with the consent of both parties if you come to an agreement between yourselves.
Finalising your family law property settlement within the specified time limits is essential. Consulting with an experienced family lawyer will help you navigate the complexities of property settlements and safeguard the rights and interests of all parties. For expert advice regarding property settlements contact the Lamrocks Family Law team on ph: 02 4731 5688.