saraMany people probably do not know that when parties separate who have been in a de facto relationship, they only have 2 years from the date of separation to lodge an application with the Court to claim for their entitlements.

If you do not file any documents with the Court prior to the expiration of the 2 year time frame, you have to seek the Court’s permission to proceed which can be a costly and time consuming process.

The Court had to consider this in a most recent Family Court appeal decision of McCoy and Chancellor [2014] FamCAFC 62.

The background to this case was the parties were in a relationship for 23 years and separated in December 2010. There were assets to the value of approximately $2 million and the parties attempted mediation in November 2012.

The parties reached an agreement at mediation however Ms McCoy did not sign the finalised Consent Orders which needed to be filed with the Court. Subsequently, Ms Chancellor filed an application with the Court to seek a division of the assets in March 2013, which was approximately 3 months after the 2 year time limit had expired.

At first instance, the Federal Circuit Court Judge gave Ms Chancellor permission to file her documents. Ms McCoy appealed this decision arguing that the Court must not allow a party to file out of time unless it is just and equitable to do so.

The Appeal Judges agreed with the Federal Circuit Court Judge as one of the factors the Court needed to determine when making decisions about giving a person permission to file documents out of time is whether the party would be caused undue hardship if leave was not given to file out of time.

The Appeal Judges stated that in this case “all matters … relevant to the just and equitable requirements were present such that to deny the application for an extension of time would inevitably cause hardship to the applicant.”

Whilst successful in this instance, you must be aware that there are occasions when the Court may not make a determination that any hardship to a party exists and therefore, not grant permission to alter the property interests.

If you have any concerns about the time frames in which you have to finalise a property settlement between you and your former de facto partner, you should contact Everingham Solomons because Helping You is Our Business.

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