When a relationship ends, dividing property and assets is crucial. However, many people miss the legal deadlines due to emotional turmoil, health challenges, or lack of awareness. If you’ve missed the time limits for property settlement, this guide explains your options and the steps to take next.

Understanding Time Limits and Their Significance

The Family Law Act 1975 establishes the framework for determining property settlements in Australia.

Here’s a summary of the time limits:

Relationship Type	Time Limit	Starting Point	Special Considerations	Provision found in
Married	12 months	Divorce order effective date	Starts after one month and one day from divorce hearing	Section 44(3)
De Facto	24 months	Date of separation	May need evidence to prove separation date	Section 44(5)

These timeframes serve multiple purposes:

• to provide certainty for all parties;
• to protect the court system from endless litigation; and
• to encourage timely resolution of financial matters.

When Time Runs Out: Understanding Your Options

Missing these deadlines doesn’t automatically close all doors, but it does make the process more complex. Let’s explore your available pathways in detail:

Seeking Leave from the Court

The primary option is applying for the court’s permission (known as “leave”) to proceed with a property settlement after separation time limits have elapsed. This process requires careful preparation and strong justification. The court examines several crucial factors:

Hardship Assessment

The court needs convincing evidence that refusing leave would cause hardship. This might manifest as:

• Financial instability requiring government assistance
• Significant disparity in asset distribution
• Health conditions limiting earning capacity
• Impact on dependent children’s welfare
• Loss of retirement security
• Housing instability

For example, if someone delays seeking a property settlement due to illness, they may face hardship if denied the opportunity to claim their share. Their contributions to the family home and limited earning capacity from ongoing health issues could be crucial in demonstrating financial difficulty.

Explaining the Delay

Courts understand that various circumstances might prevent timely applications:

• Ongoing informal arrangements that suddenly break down
• Mental health challenges or trauma
• Lack of access to legal advice
• Domestic violence or coercive control
• Financial barriers to legal representation
• Geographic isolation or language barriers

Case Strength Evaluation

Your application must demonstrate reasonable prospects of success through:

• Evidence of financial and non-financial contributions
• Documentation of future needs and capacity
• Proof of relationship length and nature
• Records of asset acquisition and management
• Evidence of child-rearing responsibilities

Impact on the Other Party

Courts carefully weigh how a late application might affect the respondent:

• Have they made significant financial decisions based on assumed finality?
• Did they receive professional advice about their position?
• Have they acquired new assets or debts?
• Are there new family obligations to consider?

Learning from Precedent: Notable Cases

Australian courts have established important principles through various cases:

Ordway & Ordway [2012] FMCAfam 624

In this interesting case, the Family Court permitted a wife’s property settlement claim 26 years after divorce, where the former matrimonial home remained central to both parties’ financial affairs. The husband used the property as security for business loans while the wife resided there and raised their children. The Court awarded her 58% of the $2.1M asset pool.

The decision established important precedent about property settlements outside standard time limits. The Court found that ongoing financial entanglement between parties could justify late claims despite the 12-month limitation period following divorce.

The case showed that:

• Courts may permit property claims years after separation where financial ties continued
• Informal arrangements without proper documentation remain vulnerable
• Using former matrimonial assets as security may support the non-titled party’s claims
• Post-separation contributions can be equal where both parties benefited
• Unenforceable agreements provide limited protection
• Courts examine post-separation asset use when assessing contributions
• Delay alone may not prevent claims if financial interdependence persisted

Slocomb & Hedgewood [2015] FamCAFC 219

In this case, the court allowed a wife’s appeal against dismissal of her application to file for property settlement 18 years after divorce. Despite the significant delay, the Court found she had demonstrated hardship and a reasonable grounds for a potential claim. The husband and wife jointly owned a house valued at $350,000, where the husband lived and made improvements while the wife had primarily cared for their children with limited financial support.

The decision reinforces that inadequate explanation for delay is just one factor to consider when granting leave for out-of-time property claims. The Court emphasised that justice between parties may outweigh long delays, particularly where significant assets remain jointly held.

Key implications include:

• Courts prioritise achieving justice between parties over strict time limits
• Inadequate explanation for delay isn’t necessarily fatal to an application
• Joint ownership of property can support granting leave despite long delays
• Post-separation care of children is relevant even after many years
• State courts can’t consider the full range of contributions like Family Courts can
• Both parties’ inaction in formalising arrangements may be considered
• Hardship and a prima facie case are the primary considerations
• Prejudice to the respondent must be specific, not just presumed from delay

The case contrasts with Ordway by focusing more on achieving justice between parties rather than their continued financial entanglement, though both support granting leave in appropriate circumstances despite very long delays.

Alternative Resolution Pathways

When court proceedings seem daunting or inappropriate, consider these options:

Binding Financial Agreements

These agreements offer flexibility because:

• No statutory time limits apply
• They can address future contingencies
• Parties maintain control over outcomes

However, they require:

• Independent legal advice for both parties
• Careful drafting to ensure enforceability
• Full financial disclosure
• Consideration of tax implications

Mediation and Negotiation

These processes can help by:

• Facilitating open communication
• Identifying common ground
• Reducing costs and stress
• Preserving relationships where needed
• Allowing creative solution-finding

Protecting Your Interests: Essential Steps

Whether pursuing court leave or alternative resolution, protect your position by:

Maintaining Comprehensive Records

Keep detailed documentation of:

• Financial contributions throughout the relationship
• Post-separation payments and arrangements
• Communication about property matters
• Health and employment records
• Child-care responsibilities
• Asset valuations and changes

Seeking Professional Guidance

Engage expert Family Lawyers to:

• Assess your legal position
• Value complex assets
• Understand tax implications
• Plan negotiation strategy
• Prepare court documents
• Represent your interests effectively

Taking Action: Next Steps

If you’ve missed the property settlement after separation time limit, you should:

• Collect financial records, correspondence, and evidence of contributions.
• Create a timeline of your relationship and separation.
• Document your reasons for delay.
• Contact us office for expert advice.

Missing a time limit can complicate your property settlement, but it doesn’t mean your chances are over. With strong legal support and the right strategy, you can still pursue a fair outcome that acknowledges your contributions and protects your future.

Expert Help for Out-of-Time Settlements

We understand that out-of-time property settlements are complex. That is why we offer:

• Initial consultation to assess your situation
• Clear explanation of available options
• Strategic advice on proceeding
• Documentation preparation and review
• Representation in negotiations or court
• Support throughout the process

At Mediations Australia, we combine legal expertise with genuine care, understanding the challenges you face. Our Nationally Accredited Family Lawyers and Mediators will guide you through the complexities of property settlement, working toward the best possible outcome for your situation. Book a FREE consultation today.