You might often hear the term ‘quickie divorce’ which implies that usually divorces take a very long time, but as any family lawyer will tell you, the legal system in Australia actually places time limits on many aspects of divorce law. One, in particular, that is key to any divorce being finalised is the property settlement, and as with other divorce matters, there are specific time constraints that exist with regards to them.
This is one of the reasons that when you first meet with your family lawyer to discuss your divorce, they are going to want to know the separation date when you and your ex first split up. This is a key date and given that there are several other dates and time limits that apply to divorces, having a family lawyer to ensure they are all met, can save you a lot of stress, and no small amount of money too.
One crucial consideration with regards to property settlements and their time limits is whether the relationship you had with your ex-partner was in fact a marriage or a de facto relationship.
If you were married then it means that you and your ex, along with your legal representatives, have a period of 12 months from the date of divorce to agree upon your property settlement and for the court to receive your application for it to be accepted.
Should you miss the 12-month deadline, an application can still be submitted with regards to a property settlement, but you need to show that if the application is not heard, you would face hardship to you or a child of the relationship.
That financial hardship needs to be shown to be severe, rather than you merely not having enough money to go on holiday for example. You would need to prove that not having the property settlement accepted by the court would mean potential eviction, or a lack of money to buy food or pay household bills.
You also need to provide the court with a valid and reasonable explanation of why your application is later than the 12-month limit. Simply saying you forgot will not cut it. A valid reason would be a delay in receiving vital financial data from a bank or mortgage company, or it could be a personal reason such as a prolonged period of hospitalisation due to a serious accident.
Whereas the time limit for a married couple to submit their property settlement application is 12 months, a couple who have been in a de facto relationship has twice the amount of time, thus from the day that the couple split, they have 24 months.
Whether it is 12 months for a married couple or 24 months for a couple in de facto relationship, there is no guarantee that they will be able to come to an agreement with their ex during that period of time. As with many scenarios where money and finances are concerned, each will want to get the best possible settlement, and where you have two parties both vying for that, an agreement is not always possible.
If that occurs, then ultimately it will be for the Family Court to decide how the property settlement is to be finalised. It will want to ensure that, as per the Family Law Act, any property settlement is just and equitable. That principle must also apply to any property settlement that a couple has agreed between them without the need for the court to decide for them.