Going through a separation is daunting for both parties and any
children they may have. Not only is it emotionally challenging, it
also requires you and the other party to re-assess your position
and adjust to a new life which will potentially involve relocating
from where you live, severing financial ties and, more importantly,
resolving care arrangements for the children to the
From a financial perspective, finalising your family law
property settlement at the first available opportunity
following your separation is always recommended to prevent costs
that you could incur by delaying the matter to sever the financial
relationship with your ex-partner at a later date.
Whilst property negotiations can prove to be confronting and
difficult for parties to deal with especially when you are also
addressing emotional issues resulting from the separation, it's
imperative that you know the risks associated when you don't
finalise your family law property settlement in a timely
The Family Law Act 1975 promotes early property settlements by
imposing time frames which require parties to start Court
proceedings for property orders. The existence of these time frames
is an avenue through which the Court encourages parties to resolve
their family law property settlement matters within a
practical time frame and provides certainty to parties. This is
particularly beneficial in matters where one party is purposely
evading the negotiation process and consequently delaying a
The relevant time frames are:
Married couples - Parties have 12 months after the divorce
order becomes effective to finalise their property settlement and,
if need be, commence proceedings to obtain property orders. The
separation date doesn't activate the limitation period
De facto couples - Within the two years after separation,
parties must finalise their property settlement and, if need be,
commence proceedings to obtain property orders.
By complying with the above time frames, parties satisfy the
Court's jurisdiction to hear and determine the matter. However,
in the event that you or the other party wishes to pursue a claim
outside of the designated time frame, the relevant party must seek
leave from the Court to begin proceedings. In determining whether
or not to grant leave, the Court will assess whether a party will
suffer hardship if the leave isn't granted.
It is essential that you also understand that the value of your
assets, liabilities and superannuation are appraised as at the time
of hearing or at the period of settlement negotiations in the
Family Law jurisdiction. In addition, if you or the other
party's financial circumstances change between separating and
when negotiations begin and/or the matter is before the Court, any
windfalls including lotto wins and inheritances may also be
integrated in the property pool for future settlement negotiations
or a Court hearing.
Bear in mind that each case is unique and the facts and
circumstances of each party differ. For this reason, advice
provided to you will be tailored accordingly, taking into account
your specific needs and circumstances.
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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