When navigating the end of a marriage or de facto relationship, it’s crucial to understand the strict timeframes surrounding property settlement and spousal maintenance applications. These time limits are imposed by the Family Law Act 1975 (Cth) (FLA) and can significantly impact your ability to secure a fair financial outcome after separation or divorce. This blog provides a practical guide to these deadlines, when exceptions apply, and what happens if you need to apply out of time.
Standard Time Limits
The Family Law Act 1975 (Cth) imposes strict deadlines for filing property and spousal maintenance applications:
- Married couples must file their application within 12 months of the divorce order taking effect or the granting of a decree of nullity.
- De facto partners have 2 years from the date of separation to make an application.
- If a financial agreement has been set aside or found invalid, both married and de facto couples have 12 months from the date of that court decision to file.
Failing to act within these periods usually means you cannot bring your claim – unless an exception applies.
Exceptions to the Rule
In limited circumstances, applications outside these timeframes can proceed:
- Consent of both parties – If both parties agree, an application can be filed late.
- Leave of the Court – If consent isn’t obtained, you can ask the court for permission (leave) to file out of time.
To grant leave, the court must be satisfied of either:
- That hardship would be caused to a party or child if leave were not granted; or
- In the case of spousal maintenance, that the applicant could not support themselves at the time the time limit expired without relying on an income-tested pension, benefit or allowance.
What Is Hardship?
Hardship involves more than just inconvenience or disadvantage. The court considers hardship to mean a significant burden—not necessarily substantial in dollar terms, but important to the applicant’s financial wellbeing.
Examples of hardship include:
- Losing the ability to have financial matters fairly resolved.
- The inability to access a potential property entitlement.
- Continued financial interdependence (e.g. shared home or business) causing practical difficulties.
Importantly, the applicant must show there’s a real possibility of success in the underlying claim. If it’s unlikely they would succeed in their property or maintenance claim, the court may not be satisfied that refusing leave would cause hardship.
The Court’s Approach to Leave Applications
When assessing whether to grant leave, the court considers:
- The length and reason for the delay;
- Any prejudice the other party may suffer due to the delay;
- The strength of the applicant’s case;
- The degree of hardship the applicant would suffer if leave is not granted.
The court process for a leave application involves filing detailed affidavit material. Both parties may be cross-examined, and the applicant may be allowed to investigate the other party’s financial situation. However, it’s not a full hearing of the property or maintenance claim—it’s simply about whether the applicant can proceed.
Important Case Examples
Anderson v McIntosh [2013]
This case clarified that only an Australian divorce triggers the 12-month deadline. An overseas divorce, like the one obtained in Argentina in this case, does not start the limitation clock.
In the Marriage of Whitford (1979)
Here, the court granted leave to a wife who applied out of time after the husband had transferred most shared assets to himself. The court found that denying her application would result in hardship, especially given her diminished financial position.
Hedley & Hedley [2009]
This case highlighted a common mistake: the trial judge assessed the wife’s financial entitlement as if it were a final hearing, rather than focusing on whether she would suffer hardship if leave were not granted. The appeal court clarified that applicants only need to show there’s a case to argue—not prove they would win the final case.
Final Thoughts
If you’re approaching or have passed the time limit for filing a property or spousal maintenance application, it’s critical to seek legal advice as soon as possible. Delay can significantly affect your ability to access what you may be entitled to.
At Spencer Family Law & Mediation, our experienced family lawyers can assess your situation, advise you on your prospects of obtaining leave if needed, and guide you through the application process. Don’t wait until it’s too late – timing is everything when it comes to securing your financial future.
Disclaimer: This article is general in nature and does not constitute legal advice. For advice tailored to your circumstances, please contact a qualified family lawyer.
