When is it too late for a Property Settlement?
In this video, Page Provan, Managing Director, Bruce Provan answers the commonly asked question, “when is it too late to do a property settlement in family law”?
Transcript
My name is Bruce Provan. I’m the Managing Director of Page Provan Family and Fertility Lawyers. We’re a firm of lawyers in central Brisbane that practises exclusively in family and fertility law. I’m sometimes in a situation where clients come to me and ask, “Is it too late to have a property settlement?” They’ve separated from their spouse or former partner. It’s been some time since they separated, and they want to know whether they can still claim a property settlement. And the answer is, look, it may be too late, because the Family Law Act provides that where there has been a marriage and a separation, the spouse could only apply for a property settlement within 12 months of their date of divorce. Now, a person can only apply for a divorce after 12 months of separation. So in other words, if it’s more than two years since the separation, it may be too late to apply for a property settlement. Alternatively, where there’s been a de facto relationship, the Act says that an application for a property settlement can only be made within two years of the date of separation. Now, that’s more complex because it’s not easy to say what is the date of separation.
And often the parties will have different dates, or what they say, different dates for the time of separation. And if that happens, the judge needs to determine when the separation actually occurs. So if you’ve separated from a spouse or former partner, it’s important to get advice from a lawyer as soon as possible before those dates expire. Now, if those dates have expired, it may not be too late to apply for a property settlement because the Family Law Act says that a person can apply for a property settlement out of time if they seek the leave or if they obtain the leave of the court and they can demonstrate hardship. Now, hardship can mean different things, and the court will look at the circumstances of each individual case. But one of the things that they will look at is what would be your entitlement for a property settlement if an order was made compared to what assets in superannuation you’ve been left with as a result of this separation. In other words, unless there’s a substantial advantage to be gained by you applying for a property settlement order, the court might not grant leave. But the court looks at a range of other circumstances.
So they will look at things like why a person didn’t seek legal advice about their entitlement following the separation. What’s been the reason for the delay? What circumstances have arisen since the separation that might have caused a delay in the property settlement? And if an application is made to court, the judge needs to take all those circumstances into account to determine whether there’s been hardship and whether leave should be granted to apply for a property settlement out of time. Now, there’s been circumstances where the court has granted leave to apply for a property settlement many years following a separation or following a divorce. And that’s why it’s important if you’ve separated from your spouse or former partner, to get advice from a lawyer as soon as possible to know your rights so that you don’t miss these limitation dates. Please contact us at Page Provan, and we can advise you. My name is Bruce Provan from Page Provan, Family and Fertility Lawyers.
