Timing is crucial when filing for property orders

13-January-2016 Family Law By Simone Green

Couples who separate need to understand the importance of properly documenting their property settlement. This can be done with a consent order or Financial Agreement.

It is essential that separated parties carefully note the following ‘critical dates’:

  1. The date that is 24 months following separation for de facto relationships;
  2. The date that is 12 months following a divorce for married relationships.

Streeterlaw’s Simone Green, a specialist in Family Law, said the above dates are critical in determining how any assets are divided.

“Following the expiry of those critical dates, parties must seek special leave of the Court in order to make an application for the adjustment of property,” Ms Green explained. “This is referred to as seeking leave ‘out of time’. Not all applications are successful however.

“In the event that it is not possible to settle and finalise a matter prior to the critical date, we recommend that you file an application for an adjustment of property interests in the Court in order to ‘stop the clock’. Settlement is still an option after filing an application and the Court is happy to make orders by consent at any time within the proceedings. This is by far the safest option.”

The Federal Circuit Court recently heard a case of Mackrell [2015] FCCA 1996 (29 July 2015) where the parties had reached an agreement following mediation, at which they were legally represented. The parties never formally entered into consent orders or a binding child support agreement, however they had acted upon the implementation of the agreement. The wife was dissatisfied with the agreement that was reached at the prior mediation and tried to have the matter heard by the Court, claiming the ground of hardship. The Court referred to the test for hardship in the case of Whitford & Whitford (1979) FLC 90-612 which asks:

a. whether the Court is satisfied that the applicant or child of the marriage would be caused hardship if leave were not granted;

b. if the Court is satisfied that hardship would be caused, then whether or not the Court should exercise its discretion to grant or refuse leave to institute proceedings out of time.

In the Mackrell case, the Court found that the settlement had not been formalised and the fact that the wife might have done better had the matter proceeded to a hearing was not enough to establish “hardship”. The wife’s settlement was also considered to be within the range of just and equitable outcome, so her application was dismissed.

We at Streeterlaw recommend that you seek legal advice to formally document any agreement reached by consent to ensure you are not caught out with the legal time limits.

For further information or advice, please contact the Family Law experts at Streeterlaw on 8197 0105 or email advice@streeterlaw.com.au.

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