Proven Experience and Understanding.

Assisting our clients through the uncertainty and difficulties that follow a relationship breakdown.

Contact Us

When do I have to take action? Limitation periods in Family Law

When do I have to take action? Limitation periods in Family Law

3 October 2019

A limitation period is a specified timeframe that you have to bring a claim before a Court. If you bring a claim outside the limitation period, the Court can dismiss your case.

 

What limitation periods can apply in family law matters?

 

Limitation period

When does the limitation period commence?

Married couples apply for property settlement

One year

Date of divorce

Defacto couples apply for property settlement

Two years

Date of separation

My limitation period has expired. Does that mean I’m safe from my ex-partner making a claim against me?

 

In family law matters the expiration of the limitation period does not stop a party from making an application for a property settlement. A party may seek Orders if they can demonstrate that they, or a child of the relationship, will suffer hardship if the Court does not allow them to have a property settlement.[1]

The Court has the discretion to decide whether a party, or a child, will suffer hardship. This means there can be no guarantee that the expiration of the limitation period will stop your ex-partner from making a claim against you.

I don’t want to file now; can I wait to file for a property settlement?

The Courts discretion to extend the limitation period does not mean that you should wait to file your application for a property settlement.

The Court may decide that you will not suffer hardship and refuse to grant you leave for your application. This means you cannot have a property with your former partner.

If this happens, and the other party has a solicitor and sought costs, you may have to pay some or all of the other parties’ legal fees to run the application.

My limitation period will expire shortly, when should I do something?

It is always best to seek legal advice as soon as possible to ensure there is plenty of time to prepare your matter before the limitation period expires. It is never a good idea to wait until the week before your limitation period expires to seek legal advice.

To make sure we can prepare your matter properly, we like to make sure that we have started preparing your application at least one month before your limitation period expires.

If you believe your limitation period is coming up, you can make an appointment with one of our solicitors to discuss your options. Appointments can be made through our online service portal or phoning us on (02) 6800 2660.

 


Please note: the information in this article is general in nature. For specific advice about your matter, make an appointment with one of our solicitors. There are different limitation periods for people who have been married and people who have been in a defacto relationship. It is important for anyone involved in the family law system to understand what limitation period applies and when the clock starts.

 

Author 
Melissa Mastronardi
Director 

 

 


 

[1] S44(4)(b) and S44(6)(a) Family Law Act 1975 (Cth)