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Have you been divorced from a former spouse? Were you previously
in a de facto relationship that ended?
If your answer to either of those questions is 'yes', and
you never formalised your property settlement with the ex, you
might have cause for concern.
Section 44(3) of the Family Law Act 1975 provides that
former spouses have 12 months from the date of their divorce to
commence property settlement proceedings before they are out of
time. The equivalent time limit for ex de facto partners pursuant
to section 44(5) is two years from the date the relationship
ended.
Well, that's good news, right? If I divorced my former
spouse a few years ago, they're not going to be able to file a
property application against me are they? Actually, that's not
quite correct.
Even if parties are out of time, they may commence property
settlement proceedings at any point in the future if they can
satisfy the court that hardship would be caused to them, or a
child, if leave were not granted.
That is a significant proviso. It means that, irrespective of
how many years have elapsed since the parties divorced, if one of
them has fallen on hard times and can show that they would suffer
hardship if leave was not granted, they will be entitled to file a
property application.
Just as worryingly, if you file an application against a former
partner in relation to non-property matters, they may seek orders
in their responsive documents concerning property settlement and
completely bypass the requirement to first obtain leave.
Although this applies equally to de facto relationships, it is
worth noting that federal jurisdiction in respect of de facto
property settlement only commenced on 1 March 2009. Any de facto
couples who separated prior to this date are subject to the
property laws of their particular state unless they both choose to
'opt in' to the federal jurisdiction.
You might think it very unlikely that a former spouse or de
facto partner would try to file a property application against you
many years after separation. However, in our experience, it is not
uncommon and can cause significant distress to the party responding
to the application.
For instance, imagine moving in with a new partner only to find
out that their spouse from another life has commenced property
settlement proceedings against them and you are going to be dragged
into their dispute.
Fortunately, there is a way to prevent such scenarios from
occurring. Aside from blindly hoping your ex won't make a move
for your money, if you formalise your property settlement in a way
recognised by the law then this will prevent either party from
filing a property application later down the track.
To formalise your property settlement, you can either obtain a
Court Order by consent that addresses property matters or enter
into a Binding Financial Agreement. There are pros and cons for
each and it would be prudent for you to speak with an experienced
family lawyer about which document best suits your needs.
We strongly recommend to all our clients from separated
marriages or de facto relationships that they formalise their
property settlement to avoid the heartache associated with
responding to an application made by a former partner.
We have a very experienced family law team at Cooper Grace Ward
and would be delighted to assist you with any queries you may have
regarding property settlement matters.
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and 2011
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Finalist - ALB Australasian Law Awards 2008, 2010 and 2011 (Best
Brisbane Firm)
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Law Firm (revenue less than $50m)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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