Is it too late to make a claim for property?

Generically all relationship property includes but is not limited to superannuation, shares, properties, cash at bank, your home, car and boats whether it is held in your name or your partner’s name. The general principal of the Family Law Act 1975, as addressed in our earlier blogs is to ensure that a just and equitable division of the relationship assets and liabilities are made.

Time limits apply for parties who wish to finalise their financial relationship, including property settlement and spousal maintenance. For de facto couples the time limit to finalise such matters is two (2) years after the date of separation. For married couples, property continues to grow after separation until such time as a Divorce Order is applied for and granted. From the date of the divorce order a time limit of 12 months applies.

After that time any asset and or liability that is held in the name of that person remains the property of that person, except, in circumstances where proceedings are brought outside of the time limits.

Why you should settle your financial matters sooner than later

It is always in your best interest to settle your property matters amicably if the other party is prepared to negotiate. However, if these matters are made more difficult due to your ex’s obstructive behaviour you should ask yourself the following questions:

  1. Can I adequately support myself and my children on what I have now?
  2. How am I going to support myself and my children in the future?
  3. Is my ex going to be unjustly in receipt of more of the assets that puts me at a financial disadvantage that I will never recover from?

If you answered with No, Don’t Know and Probably it really is in your best interests to do something before the time limits expire.

What can you do if time limits have expired?

You must apply to the Federal Circuit Court or Family Law Court for “Leave to Institute Proceedings”. This means that permission (leave) is sought from the Court to commence an application for a property settlement.

This is not an easy process, if you wish to establish that leave should be granted you must first show the Court (s443 FLA) that:

  1. Why was there a delay and that the delay was reasonable in the circumstances;
  2. That if leave is not granted, the applicant or a child of the relationship will suffer from substantial financial hardship.

The latter being the most important point for the Judges to consider. When deciding if leave should be granted the Court must consider the following:

  • There are reasons as to why time limitations exist and careful consideration must be  given to an application for leave to proceed out of time.
  • The Court must be satisfied that hardship would be caused to the applicant if leave to  proceed out of time is not granted.
  • Once hardship has been established, the Court must be persuaded that discretion  should be exercised to grant the leave to proceed.
  • The Court in considering whether to exercise the discretion must be satisfied that the  respondent will not be prejudiced.
  • Where the Court is satisfied that hardship to the applicant will be caused if the leave  is not granted, and that granting of leave will not prejudice the respondent,  consideration must be had to the circumstances of the matter before leave is granted.

To assist the Judge to make an order to grant leave to commence proceedings, it is necessary to show the Court that you are unable to support yourself, by filing your affidavit and your financial statement contemporaneously with your Application.

Who usually is successful with these types of applications?

Previous cases have shown that the applicant must demonstrate there was an adequate reason for delay. The Court has decided that in Chancellor & McCoy the delay was only a matter of weeks and the Applicant could prove that serious, however unsuccessful negotiations had been continuously had during the preceding two (2) years and the Applicant would have suffered financially had leave not been granted.

Despite the success of a few applications being granted leave, their success did not result in a property settlement.  The Applicant was merely granted permission to file an Initiating Application for interim and final orders for a financial settlement. In other words, a second and separate Court action.

The Respondent is also required to file an affidavit and financial statement to rebut the Applicant’s application for leave to institute proceedings, by providing the Judge evidence that there was no excuse for the delay and that substantial hardship would not be suffered by the Applicant, it should be noted that the onus is on the Applicant to prove his or her case to the Court.

Therefore, it is reasonable to conclude from the above information it is absolutely necessary to ensure that you have the correct advice prior to finalising the property of your relationship, long before the time limits expire, to avoid the expense of commencing possibly two applications in the Federal Circuit Court.

For more information contact our office on (07) 5679 8016 for a FREE 15 minute telephone consultation.

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