27 Sep Time limits in Family Law proceedings: A case study
A family law case detailing the importance of quality legal advice in the early stages of proceedings, to ensure the highest chance of getting the best outcomes to your property/financial settlement
Time limits generally
If you’re currently dealing with family law matters, in particular financial and property settlements, there are important time limits through the courts to be aware of, depending on the status of your relationship. These include:
- 12 months after divorce (if the parties were married) OR
- 2 years from the date of then end of the relationship (if the parties were defacto/not married).
Grant of leave exceptions outside of these family law time limits
There are exceptions if you can convince the judge to extend the time limit.
In the case detailed below which involved a de facto couple the exceptions are based on 2 conditions under section 44(6) of the Family Law Act:
- hardship would be caused to the party or a child if leave (permission by the court) were not granted; or
- for maintenance applications the parties’ circumstances were at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
Case Study- Lacy & Cloett
In this case the applicant sought leave from the Court to commence property proceedings out of time under section 44(6) of the Family Law Act
The property that was in dispute in these proceedings was a property purchased by the respondent.
Facts of case
Ms Lacy (the Applicant) and Mr Cloet (the Respondent) met in late 2008/ early 2009. They commenced cohabitation with Ms Lacy’s sister. Mr Cloet was still married at the time to his previous Wife. Mr Cloet paid rent to Ms Lacy’s sister.
Mr Cloet purchased a property in 2012 in his sole name. Ms Lacy alleged that she contributed $24,000 towards the deposit to this property and thereafter paid $1,000 per month towards the mortgage until separation in September 2014. Mr Cloet remained living in the property.
Ms Lacy issued proceedings nearly 5 years later on 11 April 2019 seeking the property pool be divided on a 50/50 basis.
The applicant Ms Lacy argued that as she contributed $24,000 towards the deposit and made monthly payments of $1000 towards the mortgage, she would suffer hardship should the court deny her the right to pursue a property settlement.
Mr Cloet argued that he contributed $15,440 of savings to the deposit and Ms Lacy loaned him $8,560, which he already repaid to her.
The sum of $15,440 savings from Mr Cloet was deposited into Ms Lacy’s bank account.
He argued that the monthly payments of $1,000 made by the applicant were for “rent” and had bank statements demonstrated this/
The issue that the Judge had to decide was whether the hardship criteria was met.
In her judgment, Judge Boyle found the applicant Ms Lacy did not meet the hardship criteria under section 44(6). The Judge based her findings on the fact that Ms Lacy’s monthly contribution of $1,000 to the property were equivalent to payments for rent and not a significant contribution. What is interesting to note is, Judge Boyle found it would be difficult “supporting an order for a 50% division of the current net pool five years after separation from a four year relationship with no children.”
The issue of delay in commencing proceedings was also addressed by Judge Boyle. Her Honour noted that the legislation provides a two year period to commence proceedings.
In the applicant’s affidavit, she explained her reason for delaying proceedings as she was unaware of her rights and had at the time recently sought legal advice. As her Honour pointed out, the applicant first had legal advice in March 2018 and did not provide any explanation as to why she did not file an application then.
As a result, leave was not granted to the applicant and the application was dismissed.
This is an illustration why good family law legal advice should be obtained and followed immediately after separation, to plan to protect claims well before time limits expire.
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