Introduction
If you are married, you have 12 months after your divorce order takes effect to apply for property settlement. If you were in a de facto relationship, you have 2 years from the date of separation. These deadlines come from section 44 of the Family Law Act 1975 and apply to both property division and spousal maintenance claims.
Many people believe that once these deadlines pass, the court will refuse to hear their case entirely. Some even try to deliberately stall the process, hoping the clock runs out and the other party loses their right to claim. Neither of these assumptions is correct. The purpose of the property settlement time limit is to encourage people to resolve their financial matters promptly. It is not designed to permanently shut anyone out. If you have missed the deadline, the court may still grant you permission to proceed.
Key Points
- 12 months after divorce for married couples (section 44(3))
- 2 years after separation for de facto couples (section 44(5))
- 12 months after a Binding Financial Agreement is set aside (section 44(3B))
- Missing the deadline does not mean the court will refuse your case
- You can apply for leave (court permission) to proceed out of time
What are the time limits for property settlement?
The Family Law Act sets three distinct deadlines depending on your situation. For married couples, the 12-month clock does not start at separation. It starts on the date the divorce order takes effect. For de facto couples, the 2-year clock begins on the day the relationship ends.
Property Settlement Deadlines
| # | Stage | Timeframe | Notes |
|---|---|---|---|
| 1 | Married Couples | 12 months | After the divorce order takes effect (Section 44(3)) |
| 2 | De Facto Couples | 2 years | After the date of separation (Section 44(5)) |
| 3 | After BFA Set Aside | 12 months | After the court sets aside the agreement (Section 44(3B)) |
There are exceptions. If a property case is already before the court, you can file a cross-application in your response even if the deadline has passed. Similarly, if you have already started proceedings within the deadline, you can amend your application later without needing special permission. These exceptions exist so the court can deal with all related financial issues at the same time.
One detail that catches people off guard in de facto cases: because there is no formal divorce decree to mark the timeline, proving the exact date of separation can become a dispute in itself. If the other party disagrees about when the relationship ended, the court may need to hold a separate hearing just to establish that date before dealing with your property claim.
What happens if you miss the deadline?
Missing the deadline is stressful, but it is not the end of your property claim. If you find yourself past the time limit, you have two paths forward.
The first is consent. If both you and your former partner agree to deal with property settlement after the deadline, you can file an Application for Consent Orders. This is the simplest route.
The second path is to apply for leave under section 44(4) for married couples or section 44(6) for de facto couples. This means asking the court for permission to start your case late. The court will not grant leave unless it is satisfied that you or a child would suffer hardship if the application were refused.
A common misconception is that courts will automatically say no to a late application. In practice, courts approach these applications with an open mind. The time limit exists to encourage prompt action, not to create injustice. If your former partner has been deliberately stalling in the hope that the deadline would pass and protect them from a claim, that strategy is unlikely to work. Courts are well aware that delay can be used as a tactic, and they take this into account.
What is hardship and how do you prove it?
Hardship is the legal threshold you must meet before the court will consider granting leave to proceed out of time. In the leading case of Whitford, the court described hardship as something similar to hardness, severity, privation, or a substantial detriment that is hard to bear.
Proving hardship requires more than simply pointing out that you lost your right to apply. In Sharp, the Full Court clarified that you must show you have a prima facie claim worth pursuing. This means your case needs to look strong enough on the surface that it would be unfair to deny you the chance to argue it.
There are a few key principles the court follows:
- Your claim must not be uncommercial. If your legal costs would exceed what you might recover, the court may find there is no real hardship in refusing your application (Gadzen & Simkin).
- You do not need to prove a real probability of success. You only need to show your claim has some merit and is not completely hopeless (Skelton & Lindop).
- Spousal maintenance claims have a lower bar. If you can show a strong case for spousal maintenance, the court almost automatically accepts that you would suffer hardship if blocked (Atwill).
What factors does the court consider when granting leave?
Once you establish hardship, the court then decides whether to exercise its discretion in your favour. The judge will look at the full picture, balancing the need to prevent hardship against the purpose of the time limit. The key factors come from Whitford and Sharp.
| Factor | What the Court Looks At | Key Case |
|---|---|---|
| Length of delay | How long after the deadline you are applying. Courts have considered delays from a few weeks to 35 years. | Catlin & Kent |
| Reason for delay | Why you did not apply on time. A reasonable belief that you had an informal agreement with your ex is a valid reason. Ongoing financial support at pre-separation levels can also explain the delay. | Edmunds, Whitford |
| Prejudice to the other party | Whether the other person would be unfairly disadvantaged by a late claim they did not expect or were led to believe would never come. | Frost & Nicholson |
| Strength of the case | Whether your claim is likely to produce a meaningful result. | Sharp |
One important warning: ignorance of the law is generally not a valid reason for missing the deadline. The court in Waldmann & Paddack made clear that not knowing about the time limit, or receiving poor legal advice about it, does not automatically entitle you to an extension. If your lawyer gave you wrong advice, you may have a claim against that lawyer, but it will not necessarily help you get leave from the court.
What documents and evidence do you need?
An application for leave is filed at the same time as your actual property settlement application. You are effectively asking the court for two things in one go: permission to proceed late, and the property orders you want.
Required materials:
- Initiating Application: the main form setting out the property orders you are seeking
- Financial Statement: a detailed summary of your current income, expenses, assets, and debts
- Affidavit in Support: your sworn statement explaining the relationship history, the reason for the delay, and the hardship you or your children would suffer if the case were refused
Helpful additional evidence:
- Emails, text messages, or letters from your former partner that show you had an informal agreement or understanding about property
- Evidence of the other party's financial position if they claim prejudice
- Medical or financial records showing hardship to you or your children
- If relevant, correspondence from your previous lawyer showing that incorrect advice contributed to the delay
FAQ
Can I still apply if my former partner has died?
You can continue a property case that was already filed before your partner died. But you generally cannot start a new application for leave to proceed out of time against a deceased person's estate (Slater). This makes it very important to act quickly if a former partner is seriously ill.
Do I need the court's permission if we both agree to settle late?
If both parties consent, you can file an Application for Consent Orders. While the court still needs to be satisfied the orders are appropriate, consent is the easiest path when the deadline has passed.
Does being in court for a parenting case cover my property claim?
No. Being in court for parenting matters does not mean you have met the property settlement time limit. You must still file a specific application for property orders within the required timeframe, or apply for leave separately.
Does an amendment to existing proceedings count as a new application?
No. If you started your property case on time, you can amend it later to include new assets or different requests without needing leave. The court's jurisdiction was established when you filed within the deadline.
Is the time limit different for de facto couples who never lived together full-time?
The 2-year limit applies to all de facto relationships regardless of living arrangements. The key question is when the relationship ended, not how it was structured.
For a detailed guide on the four-step property division process, see How Australian Courts Divide Property: The Four-Step Process. If your ex-partner is deliberately stalling the process, see Ex-Partner Delaying Property Settlement? 3 Legal Options. For situations where a party dies during proceedings, see What Happens If a Party Dies During Property Settlement?.
