If you are separating from your former partner, it is important to be aware of the time limits that may apply to you. Whilst failing to comply with a time limit may not prevent you from making a family law claim, it can create additional complexity which can be time consuming and costly to navigate.
In this article, we summarise the key time limits that apply in common family law matters.
Divorce
What is divorce?
Divorce is simply the administrative dissolution of a marriage. It is separate to property settlements and parenting matters. You can obtain a divorce without finalising your property and parenting issues, and vice versa.
When can I apply for a divorce?
To be eligible for a divorce, you must have been separated from your spouse for a continuous period of at least 12 months. If you and your spouse live together during the 12-month separation period, you will need to file an Affidavit (alongside the Application for Divorce) to prove that you were separated whilst living under the one roof. This article provides more information about what you will need to do if you have been separated and living under the same roof during the separation period.
In many cases, it can be simpler to wait until you have been physically separated (no longer living together) for at least 12 months when you apply for a divorce. This avoids the need to prepare an Affidavit and is more cost effective and straightforward.
Applying for a property settlement
Married couples
Once a divorce order takes effect, you must apply to the Court for a property settlement within 12 months. For this reason, it is sometimes recommended to wait until you have finalised your property matter before applying for a divorce.
Exceptions to this 12-month time limit include:
- Both parties agree to seek a property settlement "out of time";
- One party applies to the Court to proceed "out of time" on the basis of established legal grounds, and the Court grants the application; and
- Where the parties' Financial Agreement is set aside or held by the Court to be invalid.
If you are not yet divorced, you can apply for a property settlement at any time. However, it is not recommended to delay an application for an extended period, as you may encounter practical difficulties (such as obtaining relevant evidence), which could weaken your application.
De facto relationships
If you were in a de-facto relationship, you must apply to the Court for a property settlement within two years from the date of your separation.
There are exceptions to this time limit, which are the same as those listed above that apply to married couples.
Parenting matters
There are no time limits when applying for parenting orders. However, the timing of a parenting application may affect whether an application is considered urgent and allocated an urgent hearing date.
If you are served with a parenting application, you have 28 days to file responding material.
Other important timeframes in family law
Appeals and Reviews
If you wish to review or appeal a decision made by the Court, the following time limits apply:
- if the decision was made by a Judicial Registrar or a Senior Judicial Registrar, an Application for Review must be filed within 21 days of the day the order or decision (that is being reviewed) was made; or
- if the decision was made by a Judge, a Notice of Appeal must be filed within 28 days after the Order (that is being appealed) was made.
If you are involved in court proceedings, it is likely that other timeframes will apply, including deadlines for filing your court documents. Many of these will be outlined in Orders made by the Court during your case.
The Family & Relationship Law team at Lander & Rogers has extensive experience in managing time limit issues. If you or someone you know would benefit from further advice regarding limitation periods and the family law system, please contact a member of our specialist legal team here.
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.
