When can I apply for a Divorce after I have separated? Does a Divorce impact on my property settlement?
By Julia Vitebsky
27 January 2021
Parties who are married may apply (either solely or jointly) to the Federal Circuit Court of Australia for a Divorce Order after they have been separated and have been living separately (including separated under the one roof in the matrimonial home or joint residence) for a period of 12 months and one day.
There are very particular requirements that need to be met for a Divorce Order to be made by the Court. However, if all requirements are met a Registrar of the Court will hear the application and make the Divorce Order, which takes effect one month after the hearing.
If a Divorce Order is made, it may impact on certain provisions in Wills and Binding Death Nominations in place in relation to superannuation entitlements, which should be updated after a Divorce Order is made and takes effect. A Divorce Order will also have an impact on property settlements. Pursuant to section 44 of the Family Law Act 1975 (Cth), once a Divorce Order has been made, the limitation period within which the parties to a marriage are able to file an application for a property settlement and / or spousal maintenance in the Family Law Courts starts to run. Parties have 12 months from the date the Divorce Order takes effect to issue proceedings to deal with any financial applications. For de facto couples, this limitation period is 2 years after separation, noting there are often disputes between married and de facto parties about when, exactly, separation occurred.
What if I am out of time?
If the limitation period (of 12 months or 2 years) has lapsed, parties must seek leave of the Court to make an application out of time. Depending on the particular circumstances of a separated couple, parties may consent to leave, and this may or may not make the grant of leave more or less likely. However, the Court may not grant leave unless the applicant is able to establish ‘hardship’ to a party or to a child. Hardship is defined, based on previous cases of the Court, as a “substantial detriment”, but it is not necessarily hardship in a financial sense. Hardship may be established if a party is deprived of a “just” resolution of the property matters. However, if a party delays and cannot explain the delay, and the delay causes significant prejudice to the other party, the Court may refuse to grant leave.
If you have any further questions regarding the limitation periods or require advice in respect of your family law matter, please do not hesitate to contact the TLFC Family Law Team on (03) 8600 9333.