How The Family Court Could Affect Your Property Settlement After A Separation

[et_pb_section fb_built="1" admin_label="section" _builder_version="3.22"][et_pb_row admin_label="row" _builder_version="3.25" background_size="initial" background_position="top_left" background_repeat="repeat"][et_pb_column type="4_4" _builder_version="3.25" custom_padding="|||" custom_padding__hover="|||"][et_pb_text admin_label="Text" _builder_version="4.4.8" background_size="initial" background_position="top_left" background_repeat="repeat" hover_enabled="0"]Separation is a difficult process and it is not uncommon for people to approach our team for legal advice regarding a property settlement long after they have separated from the other party.

The Separation Process

Unfortunately and in some circumstances, the vast delay in finalizing property matters can result in a party having to seek leave (or permission) from the Court to proceed with the case. If you were in a de facto relationship, there is a time limit of two (2) years from the date of separation for de facto couples to apply to the Court for a property settlement. If you were married, there is a one-year time limit from the date of a divorce for married couples to apply to the Court for a property settlement. ** It is important to note that these time limits do not apply to Consent Orders for a property settlement, or to Binding Financial Agreements. These time limits apply to issuing proceedings in Court for a property settlement. If you and your ex-partner are unable to amicably resolve property matters in the time frames as stated above and court proceedings must be issued to bring the matter to an end, you will need to seek the courts consent or permission to bring a property settlement “out of time.”

The Family Court

Parties come to the Court with different histories, needs, resources and reasons for applying to the Court “out of time” – and careful consideration needs to be given to the facts of each case before an Application for Leave is brought to the Court. The recent Full Court of the Family Court case of Edmunds & Edmunds [2018] explores several important issues that will be taken into account when a party seeks leave to apply to the Court for a property settlement “out of time.” In that case, the parties had been separated for around 8 years after a marriage of 13 years (plus another year living together prior to marriage). There were three children of the marriage, only one of whom remained under 18 at the time the Wife/Mother applied to the Court for a property settlement. In 2017, the Wife’s Application for leave to bring her case “out of time” was rejected by the Court. This would have brought the Wife’s case to an end and resulted in the Wife receiving no settlement other than the assets she held in her name at the time of making her Court Application. However, the Wife successfully appealed to the Full Court of the Family Court in 2018. The Full Bench (three judges) of the Court then re-determined the matter, and the decided the Wife had Leave (or permission) to continue in the Court with her Application. The judgement of the Full Court emphasises that every situation is different, and there may be multiple issues for the Court to consider before deciding whether or not a party is granted leave to apply to the Court “out of time.”

Family Court Judgement

In reaching its decision, the Full Court of the Family Court asked the following questions:
  • Did the wife have a reasonable case (on its face) to succeed with a property settlement Application if she had brought proceedings to the Court within the correct timeframe?
  • Would the Court denying the Wife permission to bring her case cause her hardship?
  • Did the Wife have a reasonable explanation for her delay – and even if she didn’t – would the hardship likely to be suffered by her if leave was refused by the Court outweigh the need to provide a reasonable explanation for delay?;
  • Would the Respondent Husband suffer prejudice (or be disadvantaged in his ability to bring his case) because of the Wife’s delay on bringing an Application?
After upholding the Wife’s appeal (and concluding the Trial Judge who had refused her leave to appeal had made a number of errors) the same Full Court Judges re-determined the Wife’s Application for leave to bring her case out of time. The Full Court granted the Wife leave to bring her case “out of time”. This case shows that it cannot be presumed that the Court will automatically grant leave to a party seeking to bring a property settlement Application a long time after a marriage or de facto relationship has ended. Further, the costs of such an application are costly and further delay the resolution of your property matter. In other words, make sure that you issue proceedings (if necessary) prior to the expiration of 2 years of the date of separation for de facto relationships and prior to the expiration of 1 year from the date of divorce. To get assistance on any similar matter, contact our experienced family lawyers Melbourne team.[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]

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