Have You Run Out Of Time To Split Your Assets? 

Time Limits For De Factos.

Most people are not aware that there are time limits to make an application for a property settlement. 

You can't just separate and then five years later decide you need to split your assets. 

It's simply not fair, especially because in family law your assets keep building together until the date of settlement. 

You don't divide your assets at the date of separation. You do it at the date of settlement. Which is why the Court has time limits around getting a property settlement.

These time limits are different depending on whether you were a married or de facto couple. For now, we are just going to take you through the time limits that apply to de facto couples and what to do if the time limit has already expired.

If you are unsure about whether or not you were in a de facto relationship, you can take the quiz below. This will tell you whether or not you are considered to be a de facto for the purposes of the Family Law Act.

Stage 1: Time Limits For De Facto Couples

If you were in a de facto relationship, you have two years from the date of your separation to apply for a property settlement. 

Now this doesn't mean that you have to reach an agreement on how to split your assets within those two years. It also doesn't mean you need the Court to hear and determine your matter within those two years. You simply need to make the application within the two years. 

Property Settlement Time Limits For De Factos

But what if you and your former partner agree on how you're going to split the property pool and you just want to formalise your property settlement?

As a de facto couple you never used to be able to agree to formalise your property settlement after the two year time limit. This was recently changed. Now, if you both agree to formalise, you can do so even after the two years has expired.

Where you run into trouble is when you and your former partner don't agree and the two years has already expired.

For that reason it is important that you do NOT let your former partner drag things out.

We have come across matters where one spouse drags the negotiations out over time. 

They appear to want to settle things amicably. They suggest they are happy with splitting the assets how the other person has proposed. But they simply delay on finalising or formalising the settlement.

Then, once the two years has expired and no agreement is formalised, all of a sudden they don't agree with the original agreement.

You would then be out of time to make an application for a property settlement. Meaning you could potentially miss out on your entitlement to certain assets.

Because you no longer agree on the property settlement and it's now past the time limit of two years, it makes it extremely hard and sometimes not even possible to apply for a property settlement.

Property Settlement Time Limits For De Factos

If you sense that your former partner is trying to drag things out past the time limit, then we strongly suggest you make an application to the Court to protect your interest. 

If you are still unsure on whether or not you are out of time, you can use our out of time calculator below.

Stage 2: What To Do When You're Out Of Time

If you find yourself in a situation where your time limit has already expired, then you may still be entitled to make an application for a property settlement. 

In order to do this the Court must grant you leave. Leave is just like permission to proceed with your application.

The Court will only grant permission if:

  • Hardship will be caused to you, the applicant, or a child of the relationship if permission is not granted;
  • AND
  • The applicant must establish that their claim has a real probability of success.

Once hardship is established, the Court will also look at other factors like:

  • the length of the delay;
  • whether there's been a reasonable explanation for the delay; and
  • whether any prejudice (harm) will be caused to the other person (the respondent) as a result of the delay.

If you do find yourself in a position where you've run out of time, then it's important that you act quickly.

Where necessary, you should get legal advice on your particular situation, and depending on their recommendation, submit an application for a property settlement as soon as possible.

If you need to apply for a property settlement but don't know how, watch our video, how to apply for a property settlement, which is linked below.

How to apply for a property settlemen

If you want some advice on your particular situation, feel free to give us a call on 1300 767 384, or you can email us at [email protected]. One of our qualified lawyers will be able to let you know what to do to ensure you have the best chance of getting a property settlement if you're out of time.

Related Posts