By Kate Wild, Senior Associate
Dealing with the breakdown of a relationship is one of life’s toughest challenges. In the wake of a separation, you may have to find new accommodation, rearrange finances and negotiate arrangements for the care of children – all while dealing with the emotional burden of grief and loss.
It’s natural and sometimes necessary to put legal issues to the side while navigating the immediate challenges of separation. But for how long can legal matters be put off? And what happens if you wait too long?
When couples can reach agreement about the division of assets, timing can be less important. But, reaching an agreement is often harder than anticipated. Delaying negotiations or getting caught in negotiations for longer than expected can have serious consequences.
There are time limits in which to apply for property orders and spousal maintenance or de facto maintenance from the Courts. For married couples, an application must be made witin 1 year from the date of the Divorce Order. For de facto couples, it is 2 years from the date of separation.
Delaying divorce – an option worth considering
When the time comes to deal with the legal aspects of a marriage breakdown, getting a divorce often makes the top of the To Do list. That is not always the best way to approach things.
For married couples, the time limit only starts running when the Divorce Order is granted. The divorce means you are no longer legally married. But, it does not resolve parenting or financial issues. Once a divorce is granted, it starts a 12 month countdown to lodge an application to the Court for property or spousal maintenance orders.
If remarrying promptly is not a priority, it can sometimes be better to delay the divorce until property negotiations are completed. That way, negotiations can take place without the threat of a looming deadline. Or, depending on your situation, a deadline may be helpful.
I am out of time, what can I do?
If you have missed the time limit and the financial settlement between you and your former spouse or partner remain unresolved, all is not necessarily lost. You can apply to the Court for leave to proceed with an application out of time.
When deciding whether to grant leave, the Court will consider:
- Your reasons for not starting Court proceedings within the time limit
- Whether there is a reasonable claim to be heard
- Whether you or your children will suffer hardship if your application is not allowed to proceed
- Any prejudice to your former spouse or partner if the Court allows your application to be heard out of time.
If you recently separated from your spouse or partner, getting advice early can be an empowering step. It is always better to know your rights and options early. It may make a difference to how and when you decide to act. Our lawyers are here to help.