Time limits matter. This should be read by anyone involved in family law proceedings who have property. We were successful in a recent property settlement case when we acted for the de-facto wife in a matter where the de-facto husband sought to file his application for a property settlement out of time.
The facts
The parties were in a relationship for around 10 years and had three children together. Early in the parties’ relationship, our client purchased a property in her sole name. The deposit for the property was funded solely from her savings and a first home buyers grant. The parties lived in this property throughout the rest of their relationship and it at the time of the hearing, there was approximately $360,000 equity in the property.
The parties separated in January 2016 and the three children lived with our client and spent minimal time with the de-facto husband. This was by choice of the de-facto husband as he re-partnered and moved over four hours away. Our client continued to live in the property with the children and relied on government benefits and child support payments to meet the mortgage repayments and for living expenses. After separation, the de-facto husband sent our client a text message stating that he wanted to leave “his half of the house to the kids”. In another text message, the de-facto husband indicated that he was aware that he only had two years after separation to finalise a property settlement.
You have two years to make an application in de facto cases but one year for married couples after they divorce
In March 2018, the de-facto husband filed an application with the Court seeking that the de-facto wife sell the property and pay him half of the sale proceeds (approximately $184,000). This application was filed 82 days after the expiration of the two-year period for de-facto couples to settle property matters. As a consequence, the Court was required to determine whether the de-facto husband should be granted leave to file his application out of time.
If the parties were married, then the husband would need to apply within 12 months after the date of the parties’ divorce.
What the Court considered
In making the decision, the Court was required to consider two broad questions:
- Would hardship be caused to the de-facto husband if leave were not granted?
- If so, should the Court exercise its discretion having regard to factors including, the length of the delay, whether there is a reasonable explanation for the delay and whether there would be hardship caused to our client.
Whilst the Court found the de-facto husband would suffer hardship (because he had a realistic case) the Court refused to exercise its discretion to grant leave and our client was successful. The Court determined that our client would suffer prejudice and hardship and that the de-facto husband had not adequately explained his delay.
The important less of time limits
This case demonstrates the importance of being aware of and complying with time frames imposed by the Court.
If you are going through a separation and need advice on your property settlement or what to do next, contact us on (02) 4322 0251 to speak to one of our Family Law specialists. Time is ticking!