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.
In order to apply for a divorce, couples must be separated for at least 12 months, before bringing an application for divorce.
In financial property settlement and claims for spousal 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 two years of the date of separation.
If these time limits are not adhered to, the permission of the Court is required before an application can be made. 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.
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.
While the Court ultimately 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.