You may be deliberating over what to do about your marriage or de facto relationship ending, but while you do, bear in mind that you’ll need to be aware of certain family law deadlines and time limits for taking legal action. Here, we take a look at some key family law topics where there are time limits for taking legal action.
Time limits affecting actions in family law matters are set out in the Family Law Act 1975. There are different time limits depending on whether parties were married or if they were in a de facto couple.
Family law deadlines can sometimes be quite long (such as the deadline for commencing a case two years after the end of a de facto relationship) and sometimes very short (such as the 28 days you have to lodge an appeal after an order is made). So it’s important to be aware of the time limitations for all potential aspects of your case right from the start and get early legal advice before the timers start ticking. Make sure you inform your family lawyer of any relevant key dates that could trigger a time limitation countdown, such as date of separation, date of an order for divorce, or date of death of a spouse.
Getting a divorce
Married spouses must wait 12 months after the date of separation before they can apply for a divorce. Couples have to satisfy a court that there is no chance of the parties resuming the relationship and that they have lived separately and apart for 12 months or more. Parties can be “separated under one roof” if they are still living in the same house after separation, but may need to provide further information to prove to a court that they are separated. The court would look at factors such as the parties’ financial situation, social aspects of the relationship, nature of the household, presence of a sexual relationship and nature of the commitment between the parties.
If you were married, you can bring an application for a property settlement within one year of your divorce being finalised. It does not matter when you separated.
For de facto couples, the time limit is two years from separation.
In both cases, it’s best to start the process as soon as possible.
Extensions of time
After these family law deadlines have passed, applicants need to be granted leave (permission) of the court to make an application. Applicants have to prove hardship would occur if they were prevented from making a claim outside the time limit.
Obtaining an extension of time will mean both demonstrating reasons why you were unable to make the application within the time limit, as well as demonstrating that the case is worth pursuing and would have merit or a real chance of succeeding.
Financial support provided by a spouse to a former spouse to help them meet the reasonable cost of living is known as spousal support or spousal maintenance.
Whether married or de facto, you can apply for spousal maintenance either in the Federal Circuit Court or the Family Court.
For married applicants, applications have to be made within 12 months after a divorce is finalised.
For de facto applicants, the application must be made within 2 years of the relationship breaking down.
There are also some time limits useful to know in relation to child support. If you object to a decision made by the Child Support Agency, you need to lodge an objection to the decision within 28 days from the time of service of the notice of decision. If you are served by a decision made by the Department of Human Services (Child Support) regarding an application for a child support administrative assessment, you have 56 days in which to file an application for a paternity declaration or a non-paternity declaration. That time limit can be extended on application at the court’s discretion.
Deadlines for appeals
If you wish to appeal a decision the court has made, that appeal must be lodged within 28 days of the order being made. A party wishing to appeal a decision needs to file a Notice to Appeal.
Extensions of time
The court does have discretion to allow extensions of time in some cases for the sole purpose of enabling the court to do justice—in other words, if strict compliance with the rules will cause an injustice to occur. However, this does not apply if a case is regarded as ‘doomed to fail’.
A party can apply for an extension of time by filing an application in an appeal with an affidavit. The court considers the following when determining an application for an extension of time:
- the length of the delay;
- the reasons for the delay;
- any disadvantage caused to the other party;
- the merits of the proposed appeal; and
- the overall justice of the case.
Factors beyond your control causing delay?
If you find that your case will be subject to delays that may have a reasonable explanation, we will work with you to ensure that the court is made fully aware of such reasons. We aim to give you the best chance of success despite any delay.
If you need any family law advice or assistance, please contact Canberra family lawyer Cristina Huesch or one of our experienced solicitors here at Alliance Family Law on (02) 6223 2400 to discuss your case as soon as possible.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.