Author: Carol Pages, Pages Family Law.

There are time limits in family law about when an application can be made for property division or spousal maintenance after a relationship ends. For de facto relationships, an application must be made within two years after the breakdown of the relationship unless both parties consent to the application (for example, where the parties want to file consent orders), or one year after the Court has set aside a financial agreement related to the parties.

Where applications are made to the Court out of these times, permission (or “leave”) of the Court must be sought for the application to continue. The Court considers, among other things, whether the applicant, or a child of the relationship, will suffer hardship if leave is not granted.

In the recent case of Waldmann & Paddack [2024] FedCFamC1A 100 (24 June 2024) the Court confirmed that an out of time application would not proceed.

The application of the wife was two and a half years after the expiry (four and a half years after separation). Her application to for leave was initially dismissed by a Senior Judicial Registrar of the Court. The wife sought a review of this decision which, was granted by the Primary Judge. The husband appealed.

What each side said

De facto wife

The wife said she thought the dispute could be resolved out of court, and that she wasn’t aware of the time limits.  She argued that she would suffer hardship, as she would be entitled to about $350,000 worse off if she got half of the total property pool.

De facto husband

The husband opposed the application of the wife, and argued that he had rearranged his personal and business affairs after the expiry period.

What the court said

Primary Judge

The Primary Judge found the de facto wife had a case for property division, and even if she achieved less than a 50/50 division she may be better off than now.

Appeal Court

The appeal Court confirmed that in out of time cases it is necessary for the Court to consider the following matters, in addition to whether hardship would be suffered in not granting leave:

• – what the likely range of property division would be;
• – the likely costs of making the application and accordingly whether granting leave would address hardship (for example, what the applicant is likely to end up with after costs);
• – if there would be a substantial injustice to the other party if leave granted, based on parties being entitled to order their affairs after an expiry period thinking that no application will be made;
• – whether the likely costs incurred by both parties will be disproportionate to the amount in dispute.

The Appeal Court found:

• – the likely adjustment to the wife was between 8% and13% of the property pool, so she would receive around $171,000;
• – not being able to make an application for this amount would cause hardship, however the other relevant factors (above) must also be considered;
• – the length of delay and reason for delay were relevant – not being aware of time limits was found not to be sufficient;
• – the anticipated legal fees of both parties were likely to exceed $171,000, and were disproportionate to the amount in dispute;
• – the husband had re-arranged his personal and business affairs after the expiry of the time limit.

Summary

Although it is always recommended (and required) to attempt to resolve your matter prior to making an application to the Court, it is advisable to keep in mind any time limits to make sure that you do not need to go through the extra complexity, expense and stress of making an out of time application.

_________________________________

The content of this article is provided for information purposes only and does not constitute legal advice.  We recommend that you seek legal advice relevant to your own circumstances and we would be happy to assist you.

Carol Pages of Pages Family Law is an Accredited Specialist in Family Law.  If you would like advice about your own separation, please contact Pages Family Law at info@pagesfamilylaw.com.au or on 03 9121 8077.