After the breakdown of a relationship, couples are emotionally exhausted, stressed and often left feeling uncertain and apprehensive about the future.
This period sees people procrastinate and take the “ostrich approach”, hoping it all goes away.
However, it is important to keep in mind that “time and tide waits for no man”, or woman as the case may be, and like in many areas of the law, time limitations apply in Family Law.
Time Limits for Divorce Applications
In order to apply for a divorce, couples must be separated for at least 12 months. Couples will need to satisfy the Court that they have lived separately and there is no likelihood of reconciling their relationship. If the parties have separated under the one roof, they will also need to provide evidence to the Court demonstrating that they are not living together as husband and wife, despite cohabiting.
In order to apply for a divorce, couples must also demonstrate that they have been married for at least two (2) years. If the couple has not been married for two years then the spouse applying for the divorce must file a counselling certificate. A counselling certificate is obtained by attending upon a family counsellor to discuss the possibility of reconciliation. If the couple cannot attend marriage counselling, the spouse applying for divorce must file an Affidavit with the Court outlining why the couple cannot attend counselling. The Affidavit should also identify any special circumstances that prevent the couple from attending counselling, such as fears of family violence.
Time Limits for Resolving Parenting Arrangements
In matters pertaining to children, there is generally no time limit, but parties are required to make a genuine attempt to resolve their dispute outside of Court by attending family dispute resolution, prior to instituting proceedings.
Time Limits for Property Settlement and Spousal Maintenance Claims
In financial property settlementand claims forspousal maintenance, married couples must commence proceedings within 12 months of the divorce being made final. If parties are not divorced, then there are no time limits to filing an application. In the case of de facto relationships, proceedings must commence within 2 years of the date of separation.
What If My Time Limit Has Expired?
If a party wants to file an application for property settlement after the 12-month or 2-year timeframe, they must seek leave from the court to do so. Permission is not always granted, and the Court must be satisfied:
hardship would be caused to a child or to a party, if permission was not granted; or
for claims relating to spousal maintenance, a party’s circumstances were such that they would have been unable to support themselves without an income tested pension, allowance or benefit.
While the Court has discretion to allow property and maintenance applications to be filed out of time, seeking permission can be a stressful, costly and tedious process. It is best to avoid the cost, inconvenience and delay involved in such a process by filing within the time limits.
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