Divorce and time limits

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In Family Law Divorce, Division of Property and Childcare Arrangments are all treated separately. It is important to be informed about Divorce and time limits.

You cannot file for Divorce until at least 12 months after separation.  You do not have to be physically separated in different homes but you will have to file an affidavit with the application to show the Court that you have been leading separate lives.  Once the Divorce is final, you only have 12 months after that to bring an application to the court to divide the property.  There is no time limit to approach the Court for assistance with parenting arrangements for the kids.

For this reason, it is much better to sort out property prior to divorce.  It is not recommended that you do a property settlement immediately as emotions can be still running high and there is a risk that you may make a rash decision that you may regret later.  However, your financial needs at the time must be taken into account.  If you do make a rash decision and you have signed either Consent Orders or a Binding Financial Agreement it is then very difficult to change your mind later.  The courts do not overturn these documents lightly and only on rare occasions.

It is possible to ask the court to look at your application if there is a good reason that property settlement was not done in the 12 months after divorce.  However, for the court to accept it, they must be satisfied of the following from a leading case in this area:

“The applicant must establish three principal matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time; secondly, that denial of the wife’s claim would cause her harship; and thirdly, an adequate explanation as to her delay” (Jacenko and Jacenko [1986] FamCA25).

Therefore, be careful that you take note of the divorce date and make sure that you have at least started negotiating a property agreement prior to applying for divorce and it is always advisable to seek legal advice before agreeing to any property division.

If you need family law legal advice, call Ruth Single on freecall 1800 087 934 or why not register here https://familylawgosford.com.au/events/free-family-law-information-session-5/ for our upcoming FREE Family Law Information Session.