Like all legal actions, time limits also apply in family law matters. These time limits affect the time frame you have to bring an action in the Family Court and Federal Circuit Court. You can find these time limits in the Family Law Act 1975 (Cth).
A party will be prevented from starting a claim once the time limit has expired. Different time limits apply depending on whether parties were married or if they were in a de facto couple. The Family Law Act 1975 (Cth) recognises same sex relationships as de facto relationships so that any stipulated time limits set for de facto relationships also apply to same sex couples.
An application for a property settlement can be made either to the Family Court of Australia or the Federal Circuit Court of Australia.
When parties have been married they have one year after their divorce is finalised to bring an application for a property settlement. If the parties were in a de facto relationship, they have two years to bring an application for property settlement.
An application can only be made outside these time limits if you have been granted the permission from the court (called ‘granted leave’). You must be able to prove that hardship would be caused if you are prevented from making a claim outside of the time limit.
The courts have concluded that hardship requires demonstrating more than just a loss. It must be that the applicant has a case worth pursuing and a real chance of succeeding in that case. To be successful in obtaining an extension of time you must also be able to show the reasons for not being able to make the application before the time limit expired.
Whilst parties have either one or two years to make a property settlement, they should start the process as soon as possible. Particularly when the value of the property is likely to change.
Spousal maintenance is a form of financial support provided to a spouse or former spouse to assist them in meeting their reasonable expenses.
An application for spousal maintenance can be made by parties to a marriage or de facto relationship either in the Federal Circuit Court of the Family Court of Australia.
If the parties were married, an application must be made within 12 months after the divorce is finalised. If the couple were in a de facto relationship, then an application must be made within two years of the breakdown of the relationship.
In marriage cases, the parties must wait 12 months from the date of separation before they can apply for a divorce. Applications for divorce should be made to the Federal Circuit Court of Australia.
The couple must satisfy the court that there is no likelihood of the parties resuming the relationship and that they have lived separately and apart for at least 12 months.
Living separately and apart under the same roof
If parties have separated but still live in the same house they can still be classified as being separated. In this instance the court will make a determination as to whether the couple are separated taking into account the particular circumstances. These include the following:
- The financial situation of the parties, such as if one person is supporting the other financially;
- The nature of the household;
- The social aspects of the relationship;
- Presence of a sexual relationship; and
- The nature of the commitment between the parties.
The particular circumstances are usually demonstrated through affidavit supplied to the court by the parties when they make the application for divorce.
An appeal of a Family Court decision must be made within 28 days of the order being made. If a party wants to appeal a decision, they must file a Notice to Appeal and a copy of the order accompanied by the filing fee.
Once an application for an appeal has been served on the other party, they have 14 days to file a Response to an Application for Appeal.
A party may apply for an extension of time by filing an application in an appeal with an affidavit. The court will consider the following in determining an application for an extension of time:
- The length of delay;
- The reasons for the delay;
- Any disadvantage it has caused the other party;
- The merits of the proposed appeal; and
- The overall justice of the case.