When two parties decide to separate, it is important to keep in
mind that time is of the essence.
The Family Law Act 1975 (Cth) and the associated court rules
both require strict adherence to certain time limitations, all of
which are important for parties to a relationship breakdown to be
aware of.
Divorce
In order to apply for a divorce, the parties involved must have been separated for a period of no less than twelve months. This does not, however, mean that you and your ex-spouse must have been living separately for the entire period prior to making an application. It is possible for parties to separate, but remain living under the same roof.
Property proceedings (including Spousal Maintenance)
Married Parties
Any application for
property orders must be filed within twelve months of the date
that the
divorce order takes effect (this being one month after the
divorce is granted). If the parties are not yet divorced, there
is no time limit on filing an application for
property matters arising out of a marriage breakdown.
De-facto Parties
Any application for
property orders made by
de-facto couples must be filed within two years of separation.
The parties must establish the date of separation, and if there is
any dispute as to the date of separation (for married or
de-facto couples alike), the Family Court will consider
evidence made available by the parties, as well as any other
independent evidence.
In light of the above, it is important to note that parties can request leave of the Family Court to file an application out of time (particularly if there are extenuating circumstances which would justify a late application). Section 44(6) of the Family Law Act 1975 (Cth) provides that leave may be granted, if the court is satisfied that:
- hardship would be caused to the party or a child if leave were not granted; or
- in the case of an application for spousal maintenance, the party's circumstances at the end of the standard application period were such that they would have been unable to support themselves without an income tested pension, allowance or benefit.
Seeking leave can be a tedious and costly process, making it imperative that parties endeavour to file in the requisite time.
Parenting proceedings
In relation to parenting matters, irrespective of whether the parties were married, living as a de-facto couple or otherwise, the Family Court does not impose a time limit for the filing of an application. Generally speaking, parenting proceedings can only be initiated for children under 18 years of age.
In order to commence parenting proceedings, the Family Court requires that parties first attend dispute resolution (unless an exemption applies). If an exemption does not apply, and the parties attend the dispute resolution event but it is ultimately unsuccessful, the parties will be issued with a Section 60I certificate.
Once this certificate is obtained, the parties are permitted to commence Family Court proceedings.
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.
