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Family Law Blog

Time Limits in Separation Matters

Sometimes, if you are going through the separation process or a divorce the legalities could be the last thing on your mind.

And, because of the complexities of finalising some relationships, you might find that significant time passes before you turn your attention to what might be necessary to formally deal with property orders or spousal maintenance issues.

However, to avoid potential issues preventing you from applying to Court it is important to know that there are some time restraints on when you can approach the Court for orders relating to your separation or divorce.

Time limits for property orders

If you were married, you have 12 months after your divorce is finalised to bring an application to the Court for orders relating to the distribution of property of the relationship.

If you are in a de facto relationship, you have 24 months after the date of separation to bring the application.

This raises an important question. That is, what was the date of separation? Take a look at our other article here to get an idea of some of the key elements in determining what that date was. Of course, if significant time has passed on your memory has faded you may need to rely on secondary records such as diaries, messages, emails or the like.

Time limits for spousal maintenance orders

The time limits for applying to the Court for spousal maintenance orders are essentially the same. That is, 12 months after your divorce is finalised or 24 months after the date of separation if you were in a de facto relationship.

What happens if you miss the timeframe?

Most applications to the Court can be brought as of right. That is, you do not need the Court’s permission to bring the application.

However, if you are attempting to bring an application outside these timeframes then you will need to satisfy the Court that it is an appropriate application to hear. In legal terms you will need “leave”.

When it comes to timeframes relating to separation, you will need to demonstrate to the Court that you will suffer hardship if you are prevented from being able to bring the application.

This leads to an obvious question – what is hardship?

What is hardship? What Do You Need To Show The Court?

You will not necessarily be able to convince the Court to hear the application simply because you stand to gain some money that you would otherwise not have had.

First, you will need to explain to the Court why you did not, or could not, bring the application within the time that it was supposed to have been brought in. That might be, for example, that you were unable to secure legal advice, that you had mental or emotional difficulties, or that you were prevented in some other tangible way from bringing the application within time.

Next, you will need to satisfy the Court that you actually have an arguable position and a reasonable prospect of succeeding in your application. This is not the same as the Court deciding that you are likely to succeed, but simply a test to demonstrate that you have a real prospect of getting the orders you seek if allowed to proceed.

At a fundamental level, therefore, you would need to demonstrate to the Court the basic elements necessary to support the case that you are intending to bring.

Finally, in terms of hardship itself, you will need to put on evidence to show that you or a child of the relationship will suffer real and material loss if your application is not permitted to proceed. That might include, for example, that you are unable to educate the child of the relationship appropriately, that you are struggling to secure accommodation with available assets, or a variety of other ways in which you stand to be in a manifestly bad position should the application be prevented from continuing.

Again, the test is one of actual hardship and not necessarily one of relative positions. This means that while you may be better off if your application is allowed to proceed, that is not the issue the Court is most concerned about. The Court is most concerned about you demonstrating an objective position of hardship for yourself or a child of the relationship.

How can you apply if you’re out of time?

Your family lawyers can help you bring an application for leave to proceed out of time. They will ask all the necessary questions and put together the evidence you need to support your application.

During the process, they will ask you a range of questions to assist the application, including in relation to potential areas of hardship that can be included in an affidavit that you will need to swear to support the application.

Get in touch with us today if you need help bringing an application out of time

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