Don't Just Walk Away!
When it comes to finalising your Family Law property matter, you should be aware that there are time limitations which apply in relation to lodging your application for property settlement with the Court:
- For married couples the time limit is 12 months from the date of a divorce order becoming final; and
- For de facto relationships the time limit is two years from the date of separation.
Once the limitation period expires you must seek the Court's permission to file your application out of time. The Court may grant an extension of time on the basis that you or your child will incur hardship without the Court's assistance to achieve a property settlement.
Therefore parties can't simply walk away or informally agree on the division of property between them and assume that they have finalised their property matter.
In 2007 Robert and Joan separated and 12 months later they obtained a divorce order. They have two young children both under the age of 5 years. They sell their former matrimonial home and divide the net proceeds of sale between them in accordance with their agreement. They retain their respective shares, bank accounts, motor vehicles and superannuation. They confirmed in an email to each other that their settlement was now complete. They Divorce in 2008. At no time, however, did they enter into formal Consent Orders or sign a Financial Agreement to document their property settlement as required under the Family Law Act 1975 (Cth). In 2010 Robert receives a large inheritance from his late father's estate.
Joan applies to the Family Court to seek permission for an extension of time to make an application for property settlement. The Court will include Robert's inheritance as part of the joint property pool. The Court will not draw a line in the sand and only consider property which was in existence as at the date the parties separated. The Court will consider all property and value such property as at the date of trial or negotiation of settlement.
You must document your property settlement either by way of Consent Orders or Financial Agreement. Do not simply walk away and think you have a binding agreement with your spouse/partner. You should attend on a solicitor who will advise and assist you in finalising your property settlement to ensure the documents are completed properly and your spouse doesn't come back years later for a second bite of the cherry.