End the Financial Relationship Before it's too late

The Family Law Act 1975 (Cth) (the Act) sets out the timeframes or standard application periods that parties to a relationship can commence court proceedings for the split of relationship property.

How long do I have to make an application for property?

Relationship	Timeframe
Marriage s 44(3)	Any time between separation and divorce; and Up to 12 months from date of divorce
De facto s 44(5)	Up to 24 months from date of separation

Should I wait until after I get divorced to start proceedings?

It will depend on your circumstances. Getting started before you apply for divorce can help you avoid running out of time. Once you are divorced, the 12-month countdown will begin.

Can I make an application if the timeframe has expired?

If you have not instituted financial proceedings within the standard application period after the relationship has ended, you will either need:

1. The consent of the other party to commence proceedings; or
2. The court to grant leave (permission) to make an application out of time.

My ex-partner won’t consent. How do I get the courts permission?

The person making the application will need to persuade the court to grant leave for an out of time application. There is a two stage test the court considers when granting leave, which is:

1. Whether hardship would be caused to the party or a child of the relationship if leave were not granted; and
2. If hardship would be caused, whether the court should use its discretion to grant leave or not.

Will hardship be caused if leave is not granted?

The question of hardship focuses on what hardship will be caused if leave is not granted. It is not about a person’s hardship faced prior to leave being granted and it is not hardship that may occur.

1. A prima facie case i.e. a real prospect of success if the application was made in time; and
2. Whether the benefit of instituting proceedings will outweigh the cost.

What are the courts discretionary factors?

The court may consider any other relevant factors when deciding to grant leave, including:

1. The length of the delay;
2. the length of the relationship;
3. The reason for the delay
4. Whether the applicant at any stage abandoned their claim;
5. Whether there are alternative options available to the applicant;
6. The level of hardship the party will experience; and
7. Prejudice to the other party.