It’s not unusual in many areas of law to apply time limits to the performance of a task or making a claim. Typically, time limits are something that lawyers are very mindful of when first meeting with, and advising a client, because if time limits are missed, the family lawyer could potentially be liable if a client suffers loss.
Sometimes “timing” is important to a client as well. I have often been asked “should I wait to do my divorce before I finalise property settlement?” or with respect to relocating children “should I wait before going to Court”? These types of situations fall into the strategy of a case and there are many more examples where timing is important for a satisfactory outcome.
The following are some (not all) of the important references to time that occur when you’re involved in a Family Law matter.
Since 1975 there has only been one ground for Divorce in Australia. That is “irretrievable breakdown of the marriage”. This is evidenced by a 12-month continuous period of separation. However, to promote the opportunity for reconciliation, married couples can get back together for up to 3 months without “resetting the clock”.
For example, if I’m separated for 3 months and get back together for up to another 3 months and then separate again, the first 3 months is counted as part of the 12-month continuous period of separation. If I get back with my husband or wife for 4 months though, the 12 months would need to start again.
Also, if I’m only married for 2 years there is an additional requirement for a “counselling certificate” and counselling before the Divorce can be filed. Again, this is designed to “give love a second chance” and see whether the marriage can be saved.
Limitation periods for property claims
There are restrictions on when a claim for property settlement can be brought which are slightly different for married or de facto relationship couples. Lawyers call these time limits “Limitation Periods”.
The time limits are:
- For married couples within 1 year of the date of a Divorce.
- For de facto couples within 2 years of separation.
For married couples the time limit will not commence until a Divorce occurs. Many people think of the Divorce as covering all of the property and children’s issues however this is not the case.
A Divorce is only the termination of the marriage. People can resolve parenting issues and property settlement without ever being Divorced. Conversely, people can be Divorced and not resolve property issues.
There are some cases where people have waited long periods of time, haven’t been Divorced and seek property settlement (some more than 20 years after separation). This is not advisable as it introduces much complexity into the issues to be resolved. Without delving too far into issues of “contributions”, contributions have a different character post separation and long period of separate economic activity can be difficult to assess. In some cases, Courts have determined that after such a long period it may be no longer “just and equitable” to adjust property interests, which is a requirement of the power of the Court to Order a property settlement.
Most married people make the property settlement a priority before the Divorce and in my view this is sensible. There is no danger of the Limitation Period expiring and it makes the process simpler. In my experience complexity in legal matters typically means higher costs.
For de facto couples since 2009 (in most states) they enjoy the same processes as married couples, and the substantiative law is largely the same. However, not so regarding the Limitation Period. While married couple have 1 year it operates from the date they obtain a Divorce. De facto couples have 2 years but this time starts running from the date they separate.
In practical terms a looming Limitation Period means to protect it from expiring a Court Application must be made. Most people don’t want to go to Court and would prefer to negotiate a settlement so making sure there is sufficient time is important. Going to Court doesn’t mean you can’t negotiate a resolution, but it adds to stress and costs.
What if the Limitation Period does expire?
If the Limitation Period does expire it doesn’t necessarily mean you can’t proceed with a claim.
However before making the claim the other party would need to consent to it proceeding or permission of the Court (known as leave of the Court), would need to be obtained.
Leave of the Court will be granted if the Applicant can successfully establish “hardship” to a party or a child.
There are numerous cases with respect to hardship, some of the main points are as follows:
- Hardship is akin to hardness, severity, privation, that which is hard to bear or a substantial detriment (Whitford  FamCA 3).
- Weight ought to be given to the intention of the limitation periods (Whitford  FamCA 3).
- Matters such as the length of the delay, reasons for the delay, prejudice to the respondent occasioned by the delay, the strength of the applicant’s case and the degree of hardship… are to be give weight. (Sharp  FamCAF 150 citing Whitford).
- The application ought to have a prima facie case worth pursuing not the mere loss of a cause of action. (Sharp  FamCAF 150).
- “Prejudice” to the respondent includes where a party is faced with a cause of action, he or she had no reason to expect or had been led to believe would not be brought.” (Frost & Nicholson  FamCA 45).
If the other party requires the Applicant to obtain leave apart from the risk of the Court denying the Application, costs will be significantly increased.
The moral of the story is (in my opinion) there is no substitute for early advice from a specialist family lawyer for advice, including with respect to issues such as timing.
Other Family Law time considerations
Your family lawyer will be able to advise you with respect to timing issues from time under the Federal Circuit Court Rules 2001 or Family Law Rules 2004 to take certain steps, or the need to respond to a time limit imposed by a family law solicitor acting for your ex-partner.
Being experienced lawyers, we know the tactical considerations that ought to be borne in mind. With parenting matters this can be critical to your case because a change in a child’s circumstances can be material to the outcome.
The bottom-line is don’t procrastinate, be proactive and find out where you stand early following separation.
Family law advice
If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice.
We are family lawyers servicing all areas in Brisbane and on the Gold Coast.