By Ben Vincent – Lawyer
Many people who separate are unaware that strict time limits apply to starting court proceedings for property settlement and maintenance. In this context, “maintenance” means spousal or de facto maintenance, being financial support paid by one spouse or partner to the other for their benefit. This maintenance is separate from child support, which is paid for the benefit of children.
In most cases, an application must be filed within 12 months of a divorce becoming final, or within 2 years of the end of a de facto relationship. These limitation periods are set out in section 44 of the Family Law Act 1975 (Cth). Lawyers commonly refer to applications filed with the Court after these time periods as being “out of time.”
When parties agree
The time limits in section 44 do not apply if both parties consent to an application being filed “out of time.” This does not require agreement on the outcome or the terms of any settlement — only agreement that the Court application itself can proceed, even though it is outside the usual time limits.
When parties do not agree
Where parties do not agree to an application being filed out of time, this does not automatically prevent a property or maintenance claim from being pursued. In those circumstances, the applicant must obtain the Court’s permission (known as “leave of the Court”) to proceed.
When the Court can grant leave to proceed out of time
The Family Law Act sets out limited circumstances where the Court can grant leave to proceed out of time:
- For both property settlement applications and maintenance applications, the Court may grant leave if refusing the application would cause hardship to a party to the marriage or to a child.
- For maintenance applications, the Court may also grant leave where, at the end of the standard limitation period, the applicant was unable to support themselves without an income-tested pension, allowance or benefit.
The Court’s discretion
Meeting the statutory threshold — whether by establishing hardship (for property or maintenance) or, in maintenance cases, by showing reliance on an income-tested pension, allowance or benefit — is only the first step in an application to proceed out of time.
Even if that requirement is satisfied, the Court retains a discretion and may still refuse leave if it considers that the hardship to the applicant is outweighed by the prejudice to the respondent if the matter proceeds.
Understanding Hardship
The Act does not spell out exactly what hardship means, so the courts have developed the concept through case law.
In Whitford & Whitford (1979) FLC 90–612, the Full Court explained hardship in the following way:
“…In ordinary parlance, hardship means something more burdensome than ‘any appreciable detriment.’ We consider that in subsection 44(4) the word should have its usual, though not necessarily its most stringent, connotations. … As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. … Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted.”
From this and subsequent cases, several principles about hardship can be drawn:
- Simply losing the right to litigate, without more, is not enough to establish hardship.
- Hardship does not require proof of poverty or financial need.
- To establish hardship, the applicant must show that they would suffer a substantial detriment if the application could not proceed.
A reasonable claim is therefore an essential ingredient in proving hardship and is sufficient to prove hardship. For a claim to be reasonable, the Court will need to be satisfied that the application has merit and, after allowing for the costs of litigation, would leave the applicant materially better off.
In some cases, hardship has also been established where the applicant was induced to delay proceedings by the other party, for example through fraud, misrepresentation, or promises not honoured.
Hardship – The disclosure dilemma
A practical difficulty then arises: how can the applicant demonstrate that their claim has merit without having access to the other party’s financial information? The law draws a clear line here. The respondent has no obligation to provide disclosure until the threshold issue of hardship has first been established. In other words, disclosure is a consequence of proceedings being properly on foot, not a tool for testing whether they should be allowed to commence.
This principle was confirmed by the Full Court in Norton & Locke [2013] FamCAFC 202 (Norton), where it was held that until the relevant jurisdictional facts are established (hardship being one of them), the Court has no power to order the provision of financial information.
The same issue arose in the recent case of Huett & Calvano [2025] FEDCFAMC1F 12 (Huett). There, the applicant sought disclosure of the other party’s financial position to help demonstrate that their out-of-time claim had merit. Justice Strum, following Norton, refused the request. The reasoning was straightforward: if the applicant cannot first establish hardship, the application cannot proceed at all, and requiring disclosure would serve no purpose. To do otherwise would be to “put the cart before the horse.”
Hardship – The selective disclosure solution
That said, in Huett, Justice Strum referred to another passage in Norton where the Full Court indicated that a more selective request for financial documents from the respondent might be accepted:
“… the court has the power to make orders controlling its own process. In our view, the court does have the power to make orders or give directions in respect of the provision of such information as is reasonably necessary for the determination of the jurisdictional facts. It may well be that a court could be persuaded that financial information, broadly so-described, is directly relevant to the establishment of a jurisdictional fact.”
In other words, a broad “give me everything” approach to disclosure will fail, but a carefully targeted request for documents directly relevant to establishing hardship may succeed.
Hardship – When evidence alone may suffice
Even without disclosure, an applicant is not left entirely exposed.
In Jacenko & Jacenko (1986) FLC 91–776 (Jacenko) the Full Court held that hardship applications will ordinarily proceed on the basis of the applicant’s evidence, unless it is inherently unbelievable or contradictory.
Understanding Prejudice to the Respondent
Even if hardship is established, the Court must still decide whether to exercise its discretion to allow the application to proceed out of time. In doing so, the Court weighs the hardship to the applicant against any prejudice to the respondent if the matter were allowed to go ahead.
Central to this assessment are considerations of the length of the delay and the reasons given for it. A long and unexplained delay will usually strengthen the respondent’s argument that it would be unfairly prejudiced by the revival of the claim.
This principle was highlighted in Lambertson & Lambertson [2021] FamCAFC 48, drawing on the High Court’s decision in Brisbane South Regional Health Authority v Taylor [1996] HCA 25. In those cases, the courts emphasised that allowing a claim outside the statutory time limit is prima facie prejudicial, as respondents are entitled to assume that no further claim will be made and to arrange their financial affairs accordingly.
In practice, this means that even a well-founded claim of hardship may not succeed if the delay is lengthy and inadequately explained.
Griffin & Turner (No 2): When Hardship Isn’t Enough
The decision in Griffin & Turner (No 2) [2024] FEDCFAMC2F 1415 (Griffin) illustrates how establishing hardship is only part of the equation. Even after demonstrating hardship, an applicant may still fail if the delay is significant and the prejudice to the other party is too great.
In Griffin, there was first a preliminary issue of whether a de facto relationship existed. The judge found that it did. The wife, however, was six years out of time and so had to prove hardship.
The wife claimed the asset pool was valued at $818,097. The Court, relying on the principle in Jacenko, accepted that figure despite the husband’s disagreement.
With respect to contributions:
- The husband came into the relationship with a house.
- The husband was the main income earner and the wife the primary carer.
- Post separation, the wife’s contribution to the parties’ child was greater.
Given the short relationship of approximately 18 months, the judge found that the husband made the greater contribution overall.
With respect to each party’s needs:
- The husband was earning $75,000 annually and the wife $88,400.
- The parties’ child, then aged 9, was primarily living with the wife.
- The relationship had not impacted on either party’s earning capacity.
- The wife had re-partnered.
- The husband was paying $176 per month in child support.
The judge was not convinced that the wife’s future needs were greater than the husband’s and was critical of the wife for not filing evidence of her new partner’s financial circumstances.
The wife sought 25–30% of the asset pool. The judge concluded she was more likely to receive around 15%. At 15%, the wife would have received net assets of $122,714. The judge determined that this amount was greater than the cost of litigation and so the wife would suffer hardship if she was deprived of the opportunity to pursue a settlement.
But hardship alone was not decisive. The wife also had to justify her six-year delay. She argued that she relied on legal advice in 2018 that she had no case, she believed the husband would pay her an additional $10,000, she thought reconciliation was possible, she suffered the loss of her daughter, and she lacked funds to commence proceedings.
The Court did not accept these as adequate reasons. Relying on Lambertson and Brisbane South, the judge noted that respondents are entitled to assume claims are finalised after the limitation period and to arrange their financial affairs accordingly.
Although the wife had established hardship and shown her claim had merit, the Court declined to grant leave. The prejudice to the husband, combined with the unexplained delay, outweighed the hardship she would suffer.
In short, while the wife won the battle on hardship, she lost the war on delay and prejudice.
Don’t let delay cost you – seek legal advice early
As this article shows, the rules around time limits and hardship are complex. Early legal advice can make all the difference in avoiding costly mistakes or missed opportunities. At Blackwood Family Lawyers, we can help you navigate these issues with confidence and protect your interests.
To arrange a confidential discussion with one of our experienced family lawyers in Melbourne, call us today on 03 9118 9030.
