Picture this. Your relationship with your spouse or de facto partner has ended and you’ve been forced to leave with nothing. You decide to let the situation settle itself, but when you come around to consulting a lawyer, you’re told that you’ve missed the limitation period!
What is a “Limitation Period” and Why Does it Exist?
Just like any area of the law, in family law matters, time is of the essence. The Family Law Act 1975 imposes time limits for when proceedings for property division and spousal maintenance applications must be filed by. It is important to remember that once the time limit has expired, you will be prevented from starting a claim (unless there are substantiated reasons for why a claim is being filed out of time).
Not only do limitation periods serve as a reminder to seek legal advice promptly, but they assist in maintaining the proper administration of justice and court proceedings. For instance, major delays may severely impact both the accuracy and availability of evidence. Further, parties should be able to comfortably conclude that a matter is at an end once a certain period of time has elapsed.
In the context of family law matters, there are a few limitation periods to be aware of. These are mentioned in detail below.
How long do you have?
Limitation Period for Married Couples
Subject to section 44(3) of the Family Law Act 1975 applications relating to certain maintenance and property proceedings shall not be instituted after the expiration of twelve (12) months after the date on which a divorce order becomes absolute, or the date of making a decree of nullity.
Limitation Period for De Facto Couples
A de facto relationship commonly exists when you are not married to your partner, but have resided together as a couple or “on a genuine domestic basis”, for a minimum of two (2) years.
Under section 44(5) of the Act an application for property or maintenance orders made by de facto couples must be filed within two (2) years of separation. Unlike divorce orders, agreeing on the exact date of separation in a de facto relationship may be difficult. Where parties disagree, the Family Court will consider evidence may available by the parties, including photos, witness statements, financial documents etc.
When does my limitation period start and stop?
Now that you’re aware of limitation periods, this information may be of little value unless you’re also aware when that period of time starts to run. Typically, a limitation period starts after a specified day, and does not include that day.
Example #1: If a divorce is finalised on 15 December 2020, the limitation period would commence the following day (16 December 2020). This means the final day to file an application would be 16 December 2021.
Example #2: If a de facto relationship ends on 15 December 2020, the limitation period would commence the following day (16 December 2020). The final day to file an application would be 16 December 2022.
Have you missed the limitation period?
Typically, if your limitation period has expired, permission from the Court (leave) must be sought in order for proceedings to go ahead. In most circumstances, the Court will consider a number of factors including the length of the delay, the reason for the delay, whether the other party would be unfairly disadvantaged by an extension, and whether considerable hardship would be caused to either the party or a child if leave is not granted.
Nonetheless, parties should not assume that an application for leave is guaranteed to be successful. Rather, if parties fail to comply with the limitation period, there exists a likely possibility that they will be unable to pursue a cause of action.
Our client (“Jen”) married her partner (“Tim”) overseas in 1984. Tim emigrated to Australia, and Jen followed shortly after in 1986. The couple worked together in a factory for approximately 2 years before Jen stopped working to care for the couple’s two children. In 1997, the couple purchased the former matrimonial home which was registered in both Jen and Tim’s names. In 2000, Tim and Jen opened a furniture store which was forced to shut only a year later due to financial difficulties.
During this time, Tim would often go out after work, leaving Jen to care for the children and complete all household duties. Jen also had no power to withdraw spending money from their joint bank account. It soon became apparent that Tim was using funds from the business account to gamble. In or around mid-2003 Tim proposed that he and Jen separate for financial benefits, assuring Jen that it was only on paper, and that he would continue to take care of Jen and the kids. During this time Tim frequently travelled to his home country for extended periods of time.
Tim was prone to rages and aggression throughout the relationship and would often hit and push Jen when they had a disagreement. Between 2009-2011, Jen discovered that Tim had gotten married in his home country and had a daughter without informing Jen. Jen confronted Tim and ordered that they sell the matrimonial home. Tim refused, telling Jen to stay in the home with their children. Due to financial difficulties at the time, Jen did not believe she could seek legal advice.
In 2017 Tim brought his new wife and daughter to Australia and ordered Jen to leave the home with their 2 children, although she had been paying all costs in relation to the property between 2003-2017.
Now, 16 years outside of the limitation period, Jen would like to file an application to have the former matrimonial home sold. Jen is arguing that even though they were divorced on paper, Tim had assured Jen that they would reconcile. It was only when Jen had discovered Tim’s new family that she realised his intentions were not genuine.
Time is of the Essence
As you can see, forward thinking is crucial when confronted with limitation issues. Unfortunately many people leave it too late…..
Hire the Best Lawyers for your Family Law Case Today
If you are seeking help with your proceedings for property division and spousal maintenance applications, it’s time to find a reliable and experienced family law lawyer.
Here at JB Solicitors, we will make the process as pain-free as possible. We provide detailed Costs Agreements, giving you a clear sense of the costs from the start and will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves in making each client’s family law experience as positive as possible.