Timing considerations when initiating divorce proceedings in court

Family Law - 21 December 2017


Explanation of the limitations periods in the Family Court. The date of your divorce and the classification of your relationship affects the timing of when you can initiate litigation proceedings in the Family Court.  In this article we explain.

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Explanation of the limitations periods in the Family Court

If you are involved in family law litigation, or considering litigation, there are some important time limitation periods that you need to be aware of.

The limitations periods differ depending on whether you were/are married, or involved in a de facto relationship.

Married and divorced

If you were married, then it is important that you are aware that you have twelve months only from the date of your divorce with which to initiate proceedings in the Family Court for property settlement and / or spousal maintenance.

The Court can grant leave after the twelve month period has expired in certain circumstances however this can be an expensive and time consuming process and there is no certainty that the application will be successful. If leave is not granted, then you will not be able to apply for property settlement and / or spousal maintenance orders in the Family Court.

Of course, if you and your spouse have not yet divorced, then there are no applicable time limits and you can issue proceedings at any time after your separation.

There are no time limits for the filing of parenting applications and these can be made at any time irrespective of whether you were involved in a married or de facto relationship.

De facto relationship and separation

If you were in a de facto relationship, then any application for property settlement and / or maintenance, must be made within two years of the date of separation.

Again, in certain circumstances it is possible to get leave from the Court to make an application for property settlement out of time, however you must be able to prove that hardship would be caused to yourself or a child if leave were not granted. Whilst leave will be granted where the delay to issue proceedings is explainable, this can be a time consuming and expensive process and clearly it is preferable for proceedings to be issued well within the two year limitations period.

How we can help

When we meet with you we will provide you with advice as to the limitations periods applicable (if any) in your matter. Lander & Rogers is a leading provider of family law services in Australasia and internationally, with the largest number of accredited specialists in Family Law in Australia.  We have extensive experience dealing with property settlements and financial disputes, divorce and divorce settlements and related issues involving married and de facto couples.

Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.