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Family Law

Long delays between divorce and asking the court for property orders – what factors will allow you to beat the usual 1 year deadline?

By February 16, 2016No Comments

The Family Law Act states that any applications to Court for property settlement Orders must be filed within one year of your Divorce Order becoming final (2 years from separation for de facto couples) but what happens if you miss that deadline? Are you able to file an Application after the time limit has expired?

In the case of Slocomb & Hedgewood [2015] FamCAFC 219 the Appeal Court considered this exact issue. In March 2013 the Wife filed an Application for an extension to start her case. The parties had divorced in September 1995 and the Wife was nearly 20 years late!.

The former family home was still in both of the parties’ names although the Husband lived in it with his new Wife and the parties treated it as ‘his house’. Although the  First Wife had consulted a lawyer prior to becoming divorced she alleges that they did not advise her of the time limitation.

The issue then arose again in in 2012 when the Husband’s solicitor wrote to the Wife asking her to transfer her share of the property to him and his current Wife.

The first judge  dismissed the Wife’s application on the basis that she had not provided an adequate explanation for the very long delay; and that the prejudice to the Husband would be significant – he had spent time and money on the house and relied on the fact that no  claim had been made.

The Appeal Court looked at the case and said the test was this:

  1. Would the Wife have had a reasonable prima facie case assuming she had filed her application in time?;
  2. Would denying her that claim cause her hardship?; and
  3. Did she have an adequate explanation about delay?

It is well known that in appropriate cases the degree of hardship may outweigh an inadequate explanation of delay.

The Full Court in this case therefore accepted that the Wife would have suffered financial hardship and that she had a reasonable prima facie case – therefore she was allowed to start her case.

This case was unusual because of the very long delay but shows that if there is financial hardship and an adequate explanation for the delay it is possible to bring an application for property settlement after your time limit has expired.

If you divorce, it is in your interests to resolve your property matters promptly. You can then get on with building assets without worrying that your ex will seek to claim against you in years to come. Likewise, if you are in the Wife’s position, it is a good idea to seek legal advice urgently, to ensure that your matter is dealt with without even more delay. Our team of lawyers can advise you on your prospects, having regard to whether you have a good case, how to explain your delay, and whether you will suffer hardship if no orders are made in your favour.

If you need assistance with a property settlement matter please contact Cristina Huesch our Accredited Specialist in Family Law or one of our solicitors, Sharla Stevens or Angela Li at Alliance Family Law on (02) 6223 2400 for advice.

Remember, ‘A stitch in time saves nine!’

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