The time limits that apply to property settlements

Family law sets deadlines for property and spousal maintenance claims. They are short, they start earlier than many people expect, and missing one can cost far more than the claim itself. This article explains the deadlines that apply in Western Australia.

Start with the dates

The first thing a family lawyer will ask is whether you were married or in a de facto relationship, and the key dates. For a marriage, that is the date any divorce order took effect. For a de facto relationship, it is the date the relationship ended. Different laws, and different deadlines, apply to each.

Married couples: 12 months from the divorce

There is no deadline while you are still married. You can separate and live apart for years, and either of you can still apply for property orders.

The deadline begins when a divorce order takes effect. Under s 55(1) of the Family Law Act 1975 (Cth), that is usually one month after the court makes the order. From then, s 44(3) gives you 12 months to start proceedings for property or spousal maintenance.

Two points are often misunderstood:

(a) the deadline is for starting proceedings, not for reaching agreement. If you agree within time, filing an application for consent orders within the 12 months meets it. If you cannot agree, filing an application for the court to decide meets it, and the case can continue after the 12 months have passed;

(b) a divorce does not divide property. Property is a separate application, and once the divorce order takes effect the clock on it is running.

In Western Australia, married couples file both their divorce and their property application in the Family Court of Western Australia.

WA de facto couples: 2 years from the end of the relationship

A de facto couple in WA has property and maintenance decided under the Family Court Act 1997 (WA), not the federal Act. Section 205ZB(1) sets the deadline: 2 years after the end of the de facto relationship. The date the relationship ended is a question of fact, and it can be disputed, so do not leave a claim until the last weeks.

Superannuation is different for WA de facto couples. It is split under Part VIIIC of the federal Act, which has its own 2-year limit (s 44(7)). In practice, both claims are made together.

Late claims: consent or leave

Missing the deadline does not always end the claim. There are two ways in.

The other party agrees

Under both Acts, proceedings can be started out of time if both parties consent. A court may still dismiss them if the consent was obtained by fraud, duress or unconscionable conduct (s 44(3AA); WA s 205ZB(1A)).

The court gives leave

Without consent, you need the court's permission, called leave. The court must not grant it unless it is satisfied that refusing leave would cause hardship to you or to a child (s 44(4)(a); WA s 205ZB(2)).

Hardship here does not mean poverty. It means real detriment from losing the chance to bring a claim of substance. To show it, you must show a claim with real prospects of success. If hardship is shown, the court then decides whether to grant leave, and the length of and reasons for the delay are part of that decision. A good explanation helps. It is not a separate precondition.

For a married person's spousal maintenance claim, there is a second ground: that at the end of the 12 months you could not support yourself without an income-tested pension, allowance or benefit (s 44(4)(b)). The WA Act has no equivalent ground for de facto couples. In WA, hardship is the only route.

Things the deadline does not cover

Some applications are not caught by the 12-month limit, including an application to set aside a property order for fraud, non-disclosure or another ground under s 79A, and an application to vary an existing maintenance order.

There is also a fresh 12-month period if a financial agreement is set aside or found invalid (s 44(3B); WA s 205ZB(1)).

Why the deadline still matters if you agree

Many couples settle informally and never formalise it. An informal agreement is not binding. If the deadline then passes, one of you may later need the other's consent, or the court's leave, to have it made into orders. Transfers of property can also cost more without orders or a binding agreement, because the WA stamp duty and capital gains tax relief for separating couples depends on one being in place.

If your deadline is near, the safe step is to file. A consent orders application, or an application for the court to decide, protects the claim while you keep negotiating.

This article is general information, not legal advice.