Separation and divorce are stressful and life changing. There
are so many things to consider – your day-to-day needs,
arrangements for your children, how you will move forward and so
on. It's important to know that throughout this time there are
steps you need to take to protect your rights under the Family Law
I've written this to set out, in general terms, when it is
that time limits apply, so you're not caught by surprise, and
subsequently disadvantaged by missing one.
Time Limit 1 – Length of separation
The most straight forward (and perhaps well known) time limit is
that you can't be divorced until you have been separated for 12
Time Limit 2 – Married for less than two
Although not strictly a time limit, if you've been married
for less than two years you can't proceed with a divorce until
you've attended counselling and received a certificate for it.
In those circumstances, I will often advise that you wait until you
have been married for two years before making an application.
Time Limit 3 – Applying for property
Many people labour under the common misconception that you
can't apply for a property adjustment until you're divorced
- in fact, applications or negotiations can begin from the moment
Time Limit 4 – Property settlement
The more important time limit is that proceedings for property
settlement must be commenced, or orders made, within 12 months of
the date of divorce. If your property arrangements are not dealt
with within those 12 months, you will need to apply for the
permission of the Court to begin proceedings out of time.
In my experience, if the reason is good enough, a Court will
often grant that leave, but that should certainly never be relied
upon and property settlement really needs to be started well before
that 12 month period ends.
Time Limit 5 – De facto relationships
The situation with de factos is slightly different – at
the end of a de facto relationship there is a two year period in
which to begin proceedings for property adjustment. You cannot make
an application for de facto property adjustment if the relationship
is less than two years.
However, as with many aspects of the Family Law Act, there are
exceptions to that rule. These include if there is a child of the
relationship or if the person applying for the order made
substantial contributions and failure to make an order or
declaration could result in serious injustice to the applicant.
The time limits above also apply to parties bringing an
application for spouse maintenance, which is a concept that has
been dealt with in a previous blog.
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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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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