Are you aware of the legal deadlines that may be relevant to you if you have decided to divorce? Here’s a quick rundown on some of the issues to bear in mind when it comes to family law time limits – some time periods can be quite long but other can be very short, so it’s important to have a good idea of where you stand and to get legal advice well in advance. Your family lawyer will need to know all your relevant key dates that could trigger a time limitation countdown, including your date of separation, the date of an order for divorce or the date of death of your spouse. Whether you were married or in a de facto relationship will often mean there are different family law time limits of which to be aware.
All of the important family law time limits affecting legal actions in the family court system can be found in the Family Law Act 1975. Note that the fact that there are “rules which fix times for doing acts” in family law does not mean that those deadlines themselves should “become instruments of injustice”. For this reason, it’s possible to apply for permission (leave) of the court to take legal action outside of the time limits, if not being permitted to do so would cause a substantial injustice. More on extensions of time below.
Getting a divorce
Married spouses must wait until 12 months after the date of separation before they can apply for a divorce.
If you were a de facto couple, the time limit for bringing an application for a property settlement is within two years of the date of separation.
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).
In both cases, it’s best to start the process as soon as possible, particularly when asset values may change.
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 within that time frame.
When considering lodging an appeal, our experienced lawyers can talk to you about the process, the costs and your likely prospects of success before you spend any more money. Note that “winning” on an appeal doesn’t mean the other side pays your costs. You can find yourself spending $20,000 on an appeal, to find the Full Court sets aside the orders made due to error by your first judge, in which case you may only receive about $4,000 from the Attorney-General’s Department.
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 date of separation.
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.
Extensions of time
After family law deadlines have passed, you’ll need to be granted leave (permission) of the court to make an application. 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 a case (for property settlement matters) or 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;
- what actions a party took immediately upon learning they were out of time;
- any disadvantage caused to the other party;
- the merits of the proposed case; and
- the overall justice of the case.
Are factors beyond your control causing delay?
If you find that your case will be subject to delays that may have a reasonable explanation (such as factors beyond your control), we will work with you to ensure that the court is made fully aware of such reasons. We are experienced in drafting appropriate affidavits explaining delay and also advising on what warrants an inexcusable or unreasonable delay compared to what may be adequately explained. We aim to give you the best chance of success despite any delay.
Changed lawyers and don’t have access to your former lawyers’ file on your matter?
If you come to us having previously retained another solicitor, and find you are having difficulties obtaining your file for whatever reason, we will arrange obtaining copies for you. We will certainly not allow your matter to lapse out of time if this is an issue. We have procedures in place to get a handle on files immediately, whether it’s getting solicitor access to the electronic court portal, physically attending court to read the court file, or making arrangements to obtain your file from your former lawyers. We can also take steps such as ordering a transcript of your oral hearing, to read it and try to learn whether you have prospects of winning your appeal, before written reasons have even been formally sent out.
What if you’re just minutes late filing something??
The court deadlines aren’t flexible, so you don’t assume that you can file things ‘roughly around’ the time they are due. Even though the courts are more concerned with gross, material delays rather than matters of minutes, they cannot be expected to, for example, reinstate an appeal that was deemed abandoned because someone didn’t file their documents right on time. However, if there are reasonable explanations for a short delay, the courts will typically be fair. You might like to read about the case where a mother’s appeal was at first dismissed because she had filed an Appeal Book 11 minutes out of time.
What if you’re many years out of time??
Alliance Family Law recently acted for a wife 16 years after separation and about 8 years after divorce. We were able to successfully negotiate with the other party that the wife ought to be able to start her property settlement court case years after the ordinary deadline. Once that hurdle was met early on in the proceedings, the case was able to continue on in the usual way. This included valuing assets, assessing contributions and a successful negotiation to conclude proceedings.
With a case many years out of time, the courts will look at the usual factors for handling an application for leave to apply out of time, but also things like:
- The conduct of the parties after separation and whether a late-filing party carried out years of parenting and homemaking for children;
- Whether the parties still have assets technically in joint names (even if for many years one party has had sole use of the property)
- What is the impact on the other party, of receiving a court application years later, and after they perhaps assumed that they would not need to go through a property settlement?
If you believe you may be entitled to a property settlement ‘out of time’, please do not hesitate to call us to discuss your prospects of success and whether it is an appropriate step to take, in your circumstances.
Do you wish to speak to someone about your family law matter or need advice on family law time limits? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.