Excuse Me Please, Do You Have the Time?

Did you know that there are time limits to commence property settlement and maintenance proceedings in the Family Law Courts?

The law relating to limitation periods developed so that people could move on with their lives without being concerned that they would be subjected to litigation in years to come, and so that they could move on with their daily business with some certainty.

The relevant time limits in family law matters are as follows:

  • Former de facto couples in Western Australia may make an Application for property settlement “within 2 years after the relationship ended”.
  • Married couples may apply for divorce after they have been separated for 12 months. After the Divorce Order takes effect, they may file their Application for property settlement “within 12 months”. However, they do not need to wait for the divorce to take effect and may file at any time following separation.
  • Child welfare proceedings do not carry the same limitation period.

There has been a recent case which examined the calculation of “within” the relevant time period. In that case, a de facto couple separated on 9 January 2011, and the Applicant commenced proceedings on 9 January 2013. The Application was dismissed on the basis that it was not filed within the 2 year period. On appeal, the decision was overturned. The cost involved in the parties litigating the issue, including the appeal, is likely to have been significant, and that was before the Court was even required to determine the property settlement entitlements of the parties.

There are some instances where parties can seek leave to commence proceedings out of time including if hardship would be caused to that party or a child if leave were not granted, or if at the expiry of the time limit the applicant was unable to support himself or herself without an income tested pension, allowance or benefit. However, the costs involved in seeking such leave often substantially erode the benefit being sought.

It is very important that parties make a note of any time limits to ensure they commence proceedings within the relevant timeframes. A failure to do so can be a very expensive exercise and in worst cases, if leave is not granted, may leave that party without legal remedies in the Court. If a negotiated agreement is not possible, it is best to avoid the limitations argument altogether by ensuring that any Application is filed well before the expiry of the time limit.