There are important time limits in Family Law matters that are crucial, and parties need to be aware of and not lose sight of once they separate.
If parties are married, they must wait for a period of 12 months from the date of separation before they can apply to the Court for a Divorce. This does not mean that you and your ex-spouse must have been living separately for the entire 12-month period prior to making an application, as it is possible for parties to separate but remain living under the one roof. However, it is important to understand that further evidence may need to be provided to the Court in cases where the parties claim to have been separated but living under the same roof for part or all of the 12-month required period before the Court will make a divorce order.
Once a divorce order is granted, it does not come into effect until one month and one day after that date. That is simply the law. Therefore, if any future marriage is intended, you cannot marry until one day and one month after the date the divorce order was granted.
Once the divorce order comes into effect, you then have twelve (12) months after that date to file an application in court for financial settlement between you and your former spouse. If you miss this time limit, you will need to obtain the Court’s permission to file an application for financial settlement and/or spousal maintenance.
If the parties are not yet divorced, there is no time limit for filing an application for financial settlement and/or spousal maintenance arising out of the marriage breakdown. However, it is important to understand that the Court’s usual approach is to value the matrimonial/relationship assets as at the date of trial/settlement, not as at the date of separation. This means that in circumstances where a matter may not proceed to trial until some 18 – 24 months after proceeding have first commenced, assets such as Superannuation may rise (or fall) significantly, which will impact the overall Asset Pool and each party’s entitlement.
If you are in a de facto relationship, you have two (2) years from the date of separation to file an application in court for financial settlement and/or spousal maintenance. It is important where there is a dispute about the date of separation, that the parties provide independent evidence to the Court to establish the date of separation.
As for married couples, if de-facto couples miss this time limit, they will need to obtain the Court’s permission to file an application out of time. Seeking this permission can be a tedious and costly process, making it imperative that parties endeavour to file within the requisite timeframe.
To be eligible to file for financial settlement and / or spousal maintenance, parties must be in a de facto relationship for at least two (2) years before they can bring an application before the Court. There are exceptions to this, including factors such as whether there is a child of the relationship or whether a party has made a substantial contribution to the other one’s property, but generally speaking, if you have been in a de facto relationship for less than two (2) years, you may not have a right to a financial claim. Getting good legal advice about your rights and obligations earlier on is critical.
There is no time limit for filing an application in court in respect of parenting matters. This means you can commence court proceedings at any time so long as there is a child under the age of 18 years of age, and there is a dispute about the child/children’s care arrangements.
To commence parenting proceedings, the Court requires the parents to first attend mediation, unless an exemption applies, for example, significant child abuse, significant family violence, and a flight risk. If an agreement is reached at mediation, you can agree to file an application for consent orders with the court to formalise your agreement into a binding court order. If no agreement is reached at mediation or not all issues in dispute are resolved, the mediator will issue a Section 60I Certificate, which permits either party to go to court to seek the orders that he/she wishes the court to make.
Talk to our team to get more information regarding family law.