Don’t wait to finalise your property settlement

If you have recently divorced, you only have 12 months to negotiate, settle and formalise a property settlement with your former spouse.

If you have not finalised your property settlement and it has been more than 12 months since your divorce, you will be prevented from commencing settlement proceedings without seeking leave of the court, which is an extension of time from the Family Court to settle the matter with your former spouse.

In determining whether leave should be granted, the Court must have regard to Section 44 (4) of the Family Law Act 1975. This section states that in order for the Court to grant leave, the Court must be satisfied:

1. that hardships would be caused to a party to the marriage or a child if leave were not granted; or
2. in regards to the maintenance of a party to a marriage – that the applicant’s circumstances are such that he/she would be unable to support him/herself without an income-tested pension, allowance or benefit if leave of the court is not granted.

One recent case to consider is Ordway & Ordway [2012] FMCAFAM624, where a wife sought an order for leave to proceed with property settlement 26 years after her divorce was finalised. She argued that the reason for her delay was because she had an informal agreement between she and her ex-husband after the divorce and she didn’t want to upset the status quo. The wife had continued to live in the matrimonial home owned by the husband since their divorce in 1986, with the husband meeting the outgoings of the property and paying support to his ex-wife and children.

In his decision to grant leave, Federal Magistrate Cole said he would need to have regard to “the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or refusal of the extension of time”.

He continued, “That would include a consideration of whether there is an adequate explanation for the delay and the prejudice, if any, that would be incurred by the party in allowing proceedings to proceed at this point in time.”

The Court granted the leave to the wife on the basis of hardship.

This case highlights the matters the Court will take into account when determining whether or not to grant leave.

For more information or divorce advice, please contact one of Streeterlaw’s experts on 8197 0105 or send an email to advice@streeterlaw.com.au